XXXII. EVOLUTION OF MEDIAEVAL LATIN VERSE

I. METRICAL VERSE.

II. SUBSTITUTION OF ACCENT FOR QUANTITY.

III. SEQUENCE-HYMN AND STUDENT-SONG.

IV. PASSAGE OF THEMES INTO THE VERNACULAR.

In mediaeval Latin poetry the endeavour to preserve a classical style and the irresistible tendency to evolve new forms are more palpably distinguishable than in the prose. For there is a visible parting of the ways between the retention of the antique metres and their fruitful abandonment in verses built of accentual rhyme. Moreover, this formal divergence corresponds to a substantial difference, inasmuch as there was usually a larger survival of antique feeling and allusion in the mediaeval metrical attempts than in the rhyming poems.

As in the prose, so in the poetry, the lines of development may be followed from the Carolingian time. But a difference will be found between Italy and the North; for in Italy the course was quicker, but a less organic evolution resulted in verse less excellent and less distinctly mediaeval. By the end of the eleventh century Latin poetry in Italy, rhyming or metrical, seems to have drawn itself along as far as it was destined to progress; but in the North a richer growth culminates a century later. Indeed the most originative line of evolution of mediaeval Latin verse would seem to have been confined to the North, in the main if not exclusively.

The following pages offer no history of mediaeval Latin poetry, even as the previous chapter made no attempt to sketch the history of the prose. Their object is to point out the general lines along which the verse-forms were developed, or were perhaps retarded. Three may be distinguished. The first is marked by the retention of quantity and the endeavour to preserve the ancient measures. In the second, accent and rhyme gradually take the place of metre within the old verse-forms. The third is that of the Sequence, wherein the accentual rhyming hymn springs from the chanted prose, which had superseded the chanting of the final a of the Alleluia.[280]

The lover of classical Greek and Latin poetry knows the beautiful fitness of the ancient measures for the thought and feeling which they enframed. If his eyes chance to fall on some twelfth-century Latin hymn, he will be struck by its different quality. He will quickly perceive that classic forms would have been unsuited to the Christian and romantic sentiment of the mediaeval period,[281] and will realize that some vehicle besides metrical verse would have been needed for this thoroughly declassicized feeling, even had metrical quantity remained a vital element of language, instead of passing away some centuries before. Metre was but resuscitation and convention in the time of Charlemagne. Yet it kept its sway with scholars, and could not lack votaries so long as classical poetry made part of the Ars grammatica or was read for delectation. Metrical composition did not cease throughout the Middle Ages. But it was not the true mediaeval style, and became obviously academic as accentual verse was perfected and made fit to carry spiritual emotion. Nevertheless the simpler metres were cultivated successfully by the best scholars of the twelfth century.

Most of the Latin poetry of the Carolingian period was metrical, if we are to judge from the mass that remains. Reminiscence of the antique enveloped educated men, with whom the mediaeval spirit had not reached distinctness of thought and feeling. So the poetry resembled the contemporary sculpture and painting, in which the antique was still unsuperseded by any new style. Following the antique metres, using antique phrase and commonplace, often copying antique sentiment, this poetry was as dull as might be expected from men who were amused by calling each other Homer, Virgil, Horace, or David. Usually the poets were ecclesiastics, and interested in theology;[282] but many of the pieces are conventionally profane in topic, and as humanistic as the Latin poetry of Petrarch.[283] Moreover, just as Petrarch’s Latin poetry was still-born, while his Italian sonnets live, so the Carolingian poetry, when it forgets itself and falls away from metre to accentual verse, gains some degree of life. At this early period the Romance tongues were not a fit poetic vehicle, and consequently living thoughts, which with Dante and Petrarch found voice in Italian, in the ninth century began to stammer in Latin verses that were freed from the dead rules of quantity, and were already vibrant with a vital feeling for accent and rhyme.[284]

Through the tenth century metrical composition became rougher, yet sometimes drew a certain force from its rudeness. A good example is the famous Waltarius, or Waltharilied, of Ekkehart of St. Gall, composed in the year 960 as a school exercise.[285] The theme was a German story found in vernacular poetry. Ekkehart’s hexameters have a strong Teuton flavour, and doubtless some of the vigour of his paraphrase was due to the German original.

The metrical poems of the eleventh century have been spoken of already, especially the more interesting ones written in Italy.[286] Most of the Latin poetry emanating from that classic land was metrical, or so intended. Frequently it tells the story of wars, or gives the Gesta of notable lives, making a kind of versified biography. One feels as if verse was employed as a refuge from the dead annalistic form. This poetry was a semi-barbarizing of the antique, without new formal or substantial elements. Italy, one may say, never became essentially and creatively mediaeval: the pressure of antique survival seems to have barred original development; Italians took little part in the great mediaeval military religious movements, the Crusades; no strikingly new architecture arose with them; their first vernacular poetry was an imitation or a borrowing from Provence and France; and by far the greater part of their Latin poetry presents an uncreative barbarizing of the antique metres.

These remarks find illustration in the principal Latin poems composed in Italy in the twelfth century. Among them one observes differences in skill, knowledge, and tendency. Some of the writers made use of leonine hexameters, others avoided the rhyme. But they were all akin in lack of excellence and originality both in composition and verse-form. There was the monk Donizo of Canossa, who wrote the Vita of the great Countess Matilda;[287] there was William of Apulia, Norman in spirit if not in blood, who wrote of the Norman conquests in Apulia and Sicily;[288] also the anonymous and barbarous De bello et excidio urbis Comensis, in which is told the destruction of Como by Milan between 1118 and 1127;[289] then the metrically jingling Pisan chronicle narrating the conquest of the island of Majorca, and beginning (like the Aeneid!) with

“Arma, rates, populum vindictam coelitus octam Scribimus, ac duros terrae pelagique labores.”[290]

We also note Peter of Ebulo, with his narrative in laudation of the emperor Henry VI., written about 1194; Henry of Septimella and his elegies upon the checkered fortunes of divers great men;[291] and lastly the more famous Godfrey of Viterbo, of probable German blood, and notary or scribe to three successive emperors, with his cantafable Pantheon or Memoria saecularum.[292] Godfrey’s poetry is rhymed after a manner of his own.

In the North, or more specifically speaking in the land of France north of the Loire, the twelfth century brought better metrical poetry than in Italy. Yet it had something of the deadness of imitation, since the vis vivida of song had passed over into rhyming verse. Still from the academic point of view, metre was the proper vehicle of poetry; as one sees, for instance, in the Ars versificatoria of Matthew of Vendome,[293] written toward the close of the twelfth century. “Versus est metrica descriptio,” says he, and then elaborates his, for the most part borrowed, definition: “Verse is metrical description proceeding concisely and line by line through the comely marriage of words to flowers of thought, and containing nothing trivial or irrelevant.” A neat conception this of poetry; and the same writer denounces leonine rhyming as unseemly, but praises the favourite metre of the Middle Ages, the elegiac; for he regards the hexameter and pentameter as together forming the perfect verse. It was in this metre that Hildebert wrote his almost classic elegy over the ruins of Rome. A few lines have been quoted from it;[294] but the whole poem, which is not long, is of interest as one of the very best examples of a mediaeval Latin elegy:

“Par tibi, Roma, nihil, cum sis prope tota ruina; Quam magni fueris integra fracta doces. Longa tuos fastus aetas destruxit, et arces Caesaris et superum templa palude jacent. Ille labor, labor ille ruit quem dirus Araxes Et stantem tremuit et cecidisse dolet; Quem gladii regum, quem provida cura senatus, Quem superi rerum constituere caput; Quem magis optavit cum crimine solus habere Caesar, quam socius et pius esse socer, Qui, crescens studiis tribus, hostes, crimen, amicos Vi domuit, secuit legibus, emit ope; In quem, dum fieret, vigilavit cura priorum: Juvit opus pietas hospitis, unda, locus. Materiem, fabros, expensas axis uterque Misit, se muris obtulit ipse locus. Expendere duces thesauros, fata favorem, Artifices studium, totus et orbis opes. Urbs cecidit de qua si quicquam dicere dignum Moliar, hoc potero dicere: Roma fuit. Non tamen annorum series, non flamma, nec ensis Ad plenum potuit hoc abolere decus. Cura hominum potuit tantam componere Romam Quantam non potuit solvere cura deum. Confer opes marmorque novum superumque favorem, Artificum vigilent in nova facta manus, Non tamen aut fieri par stanti machina muro, Aut restaurari sola ruina potest. Tantum restat adhuc, tantum ruit, ut neque pars stans Aequari possit, diruta nec refici. Hic superum formas superi mirantur et ipsi, Et cupiunt fictis vultibus esse pares. Non potuit natura deos hoc ore creare Quo miranda deum signa creavit homo. Vultus adest his numinibus, potiusque coluntur Artificum studio quam deitate sua. Urbs felix, si vel dominis urbs illa careret, Vel dominis esset turpe carere fide.”[295]

The elegiac metre was used by Abaelard in his didactic poem to his son Astralabius,[296] and by John of Salisbury in his Entheticus. The hexameter also was a favourite measure, used, for instance, by Alanus of Lille in the Anticlaudianus, perhaps the noblest of mediaeval narrative or allegorical poems in Latin.[297] Another excellent composition in hexameter was the Alexandreis of Walter, born, like Alanus, apparently at Lille, but commonly called of Chatillon. As poets and as classical scholars, these two men were worthy contemporaries. Walter’s poem follows, or rather enlarges upon the Life of Alexander by Quintus Curtius.[298] He is said to have written it on the challenge of Matthew of Vendome, him of the Ars versificatoria. The Ligurinus of a certain Cistercian Gunther is still another good example of a long narrative poem in hexameters. It sets forth the career of Frederick Barbarossa, and was written shortly after the opening of the thirteenth century. Its author, like Walter and Alanus, shows himself widely read in the Classics.[299]

The sapphic was a third not infrequently attempted metre, of which the De planctu naturae of Alanus contains examples. This work was composed in the form of the De consolatione philosophiae of Boëthius, where lyrics alternate with prose. The general topic was Nature’s complaint over man’s disobedience to her laws. The author apostrophizes her in the following sapphics:

“O Dei proles, genitrixque rerum, Vinculum mundi, stabilisque nexus, Gemma terrenis, speculum caducis, Lucifer orbis. Pax, amor, virtus, regimen, potestas, Ordo, lex, finis, via, dux, origo, Vita, lux, splendor, species, figura Regula mundi. Quae tuis mundum moderas habenis, Cuncta concordi stabilita nodo Nectis et pacis glutino maritas Coelica terris. Quae noys (νοῦς) plures recolens ideas Singulas rerum species monetans, Res togas formis, chlamidemque formae Pollice formas. Cui favet coelum, famulatur aer, Quam colit Tellus, veneratur unda, Cui velut mundi dominae tributum Singula solvunt. Quae diem nocti vicibus catenans Cereum solis tribuis diei, Lucido lunae speculo soporans Nubila noctis. Quae polum stellis variis inauras, Aetheris nostri solium serenans Siderum gemmis, varioque coelum Milite complens. Quae novis coeli faciem figuris Protheans mutas aridumque vulgus Aeris nostri regione donans, Legeque stringis. Cujus ad nutum juvenescit orbis, Silva crispatur folii capillo, Et tua florum tunicata veste, Terra superbit. Quae minas ponti sepelis, et auges, Syncopans cursum pelagi furori Ne soli tractum tumulare possit Aequoris aestus.”[300]

Practically all of our examples have been taken from works composed in the twelfth century, and in the land comprised under the name of France. The pre-excellence of this period will likewise appear in accentual rhyming Latin poetry, which was more spontaneous and living than its loftily descended relative.

The academic vogue of metre in the early Middle Ages did not prevent the growth of more natural poetry. The Irish had their Gaelic poems; people of Teutonic speech had their rough verse based on alliteration and the count of the strong syllables. The Romance tongues emerging from the common Latin were as yet poetically untried. But in the proper Latin, which had become as unquantitative and accentual as any of its vulgar forms, there was a tonic poetry that was no longer unequipped with rhyme.

Three rhythmic elements made up this natural mode of Latin versification: the succession of accented and unaccented syllables; the number of syllables in a line; and that regularly recurring sameness of sound which is called rhyme. The source of the first of these seems obvious. Accent having driven quantity from speech, came to supersede it in verse, with the accented syllable taking the place of the long syllable and the unaccented the place of the short. In the Carolingian period accentual verse followed the old metrical forms, with this exception: the metrical principle that one long is equivalent to two shorts was not adopted. Consequently the number of syllables in the successive lines of an accentual strophe would remain the same, where in the metrical antecedent they might have varied. This is also sufficient to account for the second element, the observance of regularity in the number of syllables. For this regularity seems to follow upon the acceptance of the principle that in rhythmic verse an accented syllable is not equal to two unaccented ones. The query might perhaps be made why this Latin accentual verse did not take up the principle of regularity in the number of strong syllables in a line, like Old High German poetry for example, where the number of unaccented syllables, within reasonable limits, is indifferent. A ready answer is that these Latin verses were made by people of Latin speech who had been acquainted with metrical forms of poetry, in which the number of syllables might vary, but was never indifferent; for the metrical rule was rigid that one long was equivalent to two short; and to no more and no less. Hence the short syllables were as fixed in number as the long.[301]

The origin of the third element, rhyme, is in dispute. In some instances it may have passed into Greek and Latin verses from Syrian hymns.[302] But on the other hand it had long been an occasional element in Greek and Latin rhetorical prose. Probably rhyme in Latin accentual verse had no specific origin. It gradually became the sharpening, defining element of such verse. Accentual Latin lent itself so naturally to rhyme, that had not rhyme become a fixed part of this verse, there indeed would have been a fact to explain.

These, then, were the elements: accent, number of syllables, and rhyme. Most interesting is the development of verse-forms. Rhythmic Latin poetry came through the substitution of accent for quantity, and probably had many prototypes in the old jingles of Roman soldiers and provincials, which so far as known were accentual, rather than metrical. Christian accentual poetry retained those simple forms of iambic and trochaic verse which most readily submitted to the change from metre to accent, or perhaps one should say, had for centuries offered themselves as natural forms of accentual verse. Apparently the change from metre to accent within the old forms gradually took place between the sixth and the tenth centuries. During this period there was slight advance in the evolution of new verses; nor was the period creative in other respects, as we have seen. But thereafter, as the mediaeval centuries advanced from the basis of a mastered patristic and antique heritage, and began to create, there followed an admirable evolution of verse-forms: in some instances apparently issuing from the old metrico-accentual forms, and in others developing independently by virtue of the faculty of song meeting the need of singing.

This factor wrought with power--the human need and cognate faculty of song, a need and faculty stimulated in the Middle Ages by religious sentiment and emotion. In the fusing of melody and words into an utterance of song--at last into a strophe--music worked potently, shaping the composition of the lines, moulding them to rhythm, insisting upon sonorousness in the words, promoting their assonance and at last compelling them to rhyme so as to meet the stress, or mark the ending, of the musical periods. Thus the exigencies of melody helped to evoke the finished verse, while the words reciprocating through their vocal capabilities and through the inspiration of their meaning, aided the evolution of the melodies. In fine, words and melody, each quickened by the other, and each moulding the other to itself, attained a perfected strophic unison; and mediaeval musician-poets achieved at last the finished verses of hymns or Sequences and student-songs.

There were two distinct lines of evolution of accentual Latin verse in the Middle Ages; and although the faculty of song was a moving energy in both, it worked in one of them more visibly than in the other. Along the one line accentual verse developed pursuant to the ancient forms, displacing quantity with accent, and evolving rhyme. The other line of evolution had no connection with the antique. It began with phrases of sonorous prose, replacing inarticulate chant. These, under the influence of music, through the creative power of song, were by degrees transformed to verse. The evolution of the Sequence-hymn will be the chief illustration. With the finished accentual Latin poetry of the twelfth century it may become impossible to tell which line of rhythmic evolution holds the antecedent of a given poem. In truth, this final and perfected verse may often have a double ancestry, descending from the rhythms which had superseded metre, and being also the child of mediaeval melody. Yet there is no difficulty in tracing by examples the two lines of evolution.

To illustrate the strain of verse which took its origin in the displacement of metre by accent and rhyme, we must look back as far as Fortunatus. He was born about the year 530 in northern Italy, but he passed his eventful life among Franks and Thuringians. A scholar and also a poet, he had a fair mastery of metre; yet some of his poems evince the spirit of the coming mediaeval time both in sentiment and form. He wrote two famous hymns, one of them in the popular trochaic tetrameter, the other in the equally simple iambic dimeter. The first, a hymn to the Cross, begins with the never-to-be-forgotten

“Pange, lingua, gloriosi proelium certaminis”;

and has such lines as

“Crux fidelis, inter omnes arbor una nobilis

* * * * *

Dulce lignum, dulce clavo dulce pondus sustinens!”

In these the mediaeval feeling for the Cross shows itself, and while the metre is correct, it is so facile that one may read or sing the lines accentually. In the other hymn, also to the Cross, assonance and rhyme foretell the coming transformation of metre to accentual verse. Here are the first two stanzas:

“Vexilla regis prodeunt, Fulget crucis mysterium, Quo carne carnis conditor Suspensus est patibulo.

Confixa clavis viscera Tendens manus, vestigia Redemtionis gratia Hic immolata est hostia.”

Passing to the Carolingian epoch, some lines from a poem celebrating the victory of Charlemagne’s son Pippin over the Avars in 796, will illustrate the popular trochaic tetrameter which had become accentual, and already tended to rhyme:

“Multa mala iam fecerunt ab antico tempore, Fana dei destruxerunt atque monasteria, Vasa aurea sacrata, argentea, fictilia.”[303]

Next we turn to a piece by the persecuted and interesting Gottschalk, written in the latter part of the ninth century. A young lad has asked for a poem. But how can he sing, the exiled and imprisoned monk who might rather weep as the Jews by the waters of Babylon?[304] yet he will sing a hymn to the Trinity, and bewail his piteous lot before the highest pitying Godhead. The verses have a lyric unity of mood, and are touching with their sad refrain. Their rhyme, if not quite pure, is abundant and catching, and their nearest metrical affinity would be a trochaic dimeter.

“1. Ut quid iubes, pusiole, quare mandas, filiole, carmen dulce me cantare, cum sim longe exul valde intra mare? o cur iubes canere?

2. Magis mihi, miserule, fiere libet, puerule, plus plorare quam cantare carmen tale, iubes quale, amor care, o cur iubes canere?

3. Mallem scias, pusillule, ut velles tu, fratercule, pio corde condolere mihi atque prona mente conlugere. o cur iubes canere?

4. Scis, divine tyruncule, scis, superne clientule, hic diu me exulare, multa die sive nocte tolerare. o cur iubes canere?

5. Scis captive plebicule Israheli cognomine praeceptum in Babilone decantare extra longe fines Iude. o cur iubes canere?

6. Non potuerunt utique, nec debuerunt itaque carmen dulce coram gente aliene nostri terre resonare. o cur iubes canere?

7. Sed quia vis omnimode, consodalis egregie, canam patri filioque simul atque procedente ex utroque. hoc cano ultronee.

8. Benedictus es, domine, pater, nate, paraclite, deus trine, deus une, deus summe, deus pie, deus iuste. hoc cano spontanee.

9. Exul ego diuscule hoc in mare sum, domine: annos nempe duos fere nosti fore, sed iam iamque miserere. hoc rogo humillime.

10. Interim cum pusione psallam ore, psallam mente, psallam voce (psallam corde), psallam die, psallam nocte carmen dulce tibi, rex piissime.”[305]

Gottschalk (and for this it is hard to love him) was one of the initiators of the leonine hexameter, in which a syllable in the middle of the line rhymes with the last syllable.

“Septeno Augustas decimo praeeunte Kalendas”

is the opening hexameter in his Epistle to his friend Ratramnus.[306] To what horrid jingle such verses could attain may be seen from some leonine hexameter-pentameters of two or three hundred years later, on the Fall of Troy, beginning:

“Viribus, arte, minis, Danaum clara Troja ruinis, Annis bis quinis fit rogus atque cinis.”[307]

Hector and Troy, and the dire wiles of the Greeks never left the mediaeval imagination. A poem of the early tenth century, which bade the watchers on Modena’s walls be vigilant, draws its inspiration from that unfading memory, and for us illustrates what iambics might become when accent had replaced quantity. The lines throughout end in a final rhyming a.

“O tu, qui servas armis ista moenia, Noli dormire, moneo, sed vigila. Dum Hector vigil extitit in Troia, Non eam cepit fraudulenta Graecia.”[308]

And from a scarcely later time, for it also is of the tenth century, rise those verses to Roma, that old “Roma aurea et eterna,” and forever “caput mundi,” sung by pilgrim bands as their eyes caught the first gleam of tower, church, and ruin:

“O Roma nobilis, orbis et domina, Cunctarum urbium excellentissima, Roseo martyrum sanguine rubea, Albis et virginum liliis candida: Salutem dicimus tibi per omnia, Te benedicimus: salve per secula.”[309]

This verse, which still lifts the heart of whosoever hears or reads it, may close our examples of mediaeval verses descended from metrical forms. It will be noticed that all of them are from the early mediaeval centuries; a circumstance which may be taken as a suggestion of the fact that by far the greater part of the earlier accentual Latin poetry was composed in forms in which accent simply had displaced the antique quantity.

III

We turn to that other genesis of mediaeval Latin verse, arising not out of antique forms, but rather from the mediaeval need and faculty of song. In the chief instance selected for illustration, this line of evolution took its inception in the exigencies and inspiration of the Alleluia chant or jubilation. During the celebration of the Mass, as the Gradual ended in its last Alleluia, the choir continued chanting the final syllable of that word in cadences of musical exultings. The melody or cadence to which this final a of the Alleluia was chanted, was called the sequentia. The words which came to be substituted for its cadenced reiteration were called the prosa. By the twelfth century the two terms seem to have been used interchangeably. Thus arose the prose Sequence, so plastic in its capability of being moulded by melody to verse. Its songful qualities lay in the sonorousness of the words and in their syllabic correspondence with the notes of the melody to which they were sung.[310]

In the year 860, Norsemen sacked the cloister of Jumièges in Normandy, and a fleeing brother carried his precious Antiphonary far away to the safe retreat of St. Gall. There a young monk named Notker, poring over its contents, perceived that words had been written in the place of the repetitions of the final a of the Alleluia. Taking the cue, he set to work to compose more fitting words to correspond with the notes to which this final a was sung. So these lines of euphonious and fitting words appear to have had their beginning in Notker’s scanning of that fugitive Antiphonary, and his devising labour. Their primary purpose was a musical one; for they were a device--mnemotechnic, if one will--to facilitate the chanting of cadences previously vocalized with difficulty through the singing of one simple vowel sound. Notker showed his work to his master, Iso, who rejoiced at what his gifted pupil had accomplished, and spurred him on by pointing out that in his composition one syllable was still sometimes repeated or drawn out through several successive notes. One syllable to each note was the principle which Notker now set himself to realize; and he succeeded.

He composed some fifty Sequences. In his work, as well as in that of others after him, the device of words began to modify and develop the melodies themselves. Sometimes Notker adapted his verbal compositions to those cadences or melodies to which the Alleluia had long been sung; sometimes he composed both melody and words; or, again, he took a current melody, sacred or secular, to which the Alleluia never had been sung, and composed words for it, to be chanted as a Sequence. In these borrowed melodies, as well as in those composed by Notker, the musical periods were more developed than in the Alleluia cadences. Thus the musical growth of the Sequences was promoted by the use of sonorous words, while the improved melodies in turn drew the words on to a more perfect rhythmic ordering.

Notker died in 912. His Sequences were prose, yet with a certain parallelism in their construction; and, even with Notker in his later years, the words began to take on assonances, chiefly in the vowel sound of a. Thereafter the melodies, seizing upon the words, as it were, by the principle of their syllabic correspondence to the notation, moulded them to rhythm of movement and regularity of line; while conversely with the better ordering of the words for singing, the melodies in turn made gain and progress, and then again reacted on the words, until after two centuries there emerged the finished verses of an Adam of St. Victor.

Thus these Sequences have become verse before our eyes, and we realize that it is the very central current of the evolution of mediaeval Latin poetry that we have been following. How free and how spontaneous was this evolution of the Sequence. It was the child of the Christian Middle Ages, seeing the light in the closing years of the ninth century, but requiring a long period of growth before it reached the glory of its climacteric. It was born of musical chanting, and it grew as song, never unsung or conceived of as severable from its melody. Only as it attained its perfected strophic forms, it necessarily made use of trochaic and other rhythms which long before had changed from quantity to accent and so had passed on into the verse-making habitudes of the Middle Ages.[311] If there be any Latin composition in virtue of origin and growth absolutely un-antique, it is the mediaeval Sequence, which in its final forms is so glorious a representative of the mediaeval Hymn. And we shall also see that much popular Latin poetry, “Carmina Burana” and student-songs, were composed in verses and often sung to tunes taken--or parodied--from the Sequence-hymns of the Liturgy.

There were many ways of chanting Sequences. The musical phrases of the melodies usually were repeated once, except at the beginning and the close; and the Sequence would be rendered by a double choir singing antiphonally. Ordinarily the words responded to the repetition of the musical phrases with a parallelism of their own. The lines (after the first) varied in length by pairs, the second and third lines having the same number of syllables, the fourth and fifth likewise equal to each other, but differing in length from the second and third; and so on through the Sequence, until the last line, which commonly stood alone and differed in length from the preceding pairs. The Sequence called “Nostra tuba” is a good example. Probably it was composed by Notker, and in his later years; for it is filled with assonances, and exhibits a regular parallelism of structure.

“Nostra tuba Regatur fortissime Dei dextra et preces audiat Aura placatissima et serena; ita enim nostra Laus erit accepta, voce si quod canimus, canat pariter et pura conscientia. Et, ut haec possimus, omnes divina nobis semper flagitemus adesse auxilia.

* * * * *

O bone Rex, pie, juste, misericors, qui es via et janua, Portas regni, quaesumus, nobis reseres, dimittasque facinora Ut laudemus nomen nunc tuum atque per cuncta saecula.”[312]

Here, after the opening, the first pair has seventeen syllables, and the next pair twenty-six. The last pair quoted has twenty; and the final line of seventeen syllables has no fellow. A further rhythmical advance seems reached by the following Sequence from the abbey of St. Martial at Limoges. It may have been written in the eleventh century. It is given here with the first and second line of the couplets opposite to each other, as strophe and antistrophe; and the lines themselves are divided to show the assonances (or rhymes) which appear to have corresponded with pauses in the melody:

“(1) Canat omnis turba

(2a) Fonte renata (2b) Laude jucunda Spiritusque gratia et mente perspicua

(3a) Jam restituta (3b) Sicque jactura pars est decima coelestis illa fuerat quae culpa completur in laude perdita. divina.

(4a) Ecce praeclara (4b) Enitet ampla dies dominica per orbis spatia,

(5a) Exsultat in qua (5b) Quia destructa plebs omnis redempta, mors est perpetua.”[313]

A Sequence of the eleventh century will afford a final illustration of approach to a regular strophic structure, and of the use of the final one-syllable rhyme in a, throughout the Sequence:

“Alleluia, Turma, proclama leta; Laude canora, Facta prome divina, Jam instituta Superna disciplina,

Christi sacra Per magnalia Es quia de morte liberata Ut destructa Inferni claustra Januaque celi patefacta!

Jam nunc omnia Celestia Terrestria Virtute gubernat eterna. In quibus sua Judicia Semper equa Dat auctoritate paterna.”

* * * *[314]

As the eleventh century closed and the great twelfth century dawned, the forces of mediaeval growth quickened to a mightier vitality, and distinctively mediaeval creations appeared. Our eyes, of course, are fixed upon the northern lands, where the Sequence grew from prose to verse, and where derivative or analogous forms of popular poetry developed also. Up to this time, throughout mediaeval life and thought, progress had been somewhat uncrowned with palpable achievement. Yet the first brilliant creations of a master-workman are the fruit of his apprentice years, during which his progress has been as real as when his works begin to make it visible. So it was no sudden birth of power, but rather faculties ripening through apprentice centuries, which illumine the period opening about the year 1100. This period would carry no human teaching if its accomplishment in institutions, in philosophy, in art and poetry, had been a heaven-blown accident, and not the fruit of antecedent discipline.

The poetic advance represented by the Sequences of Adam of St. Victor may rouse our admiration for the poet’s genius, but should not blind our eyes to the continuity of development leading to it. Adam is the final artist and his work a veritable creation; yet his antecedents made part of his creative faculty. The elements of his verses and the general idea and form of the sequence were given him;--all honour to the man’s holy genius which made these into poems. The elements referred to consisted in accentual measures and in the two-syllabled Latin rhyme which appears to have been finally achieved by the close of the eleventh century.[315] In using them Adam was no borrower, but an artist who perforce worked in the medium of his art. Trochaic and iambic rhythms then constituted the chief measures for accentual verse, as they had for centuries, and do still. For, although accentual rhythms admit dactyls and anapaests, these have not proved generally serviceable. Likewise the inevitable progress of Latin verse had developed assonances into rhymes; and indeed into rhymes of two syllables, for Latin words lend themselves as readily to rhymes of two syllables as English words to rhymes of one.

There existed also the idea and form of the Sequence, consisting of pairs of lines which had reached assonance and some degree of rhythm, and varied in length, pair by pair, following the music of the melodies to which they were sung. For the Sequence-melody did not keep to the same recurring tune throughout, but varied from couplet to couplet. In consequence, a Sequence by Adam of St. Victor may contain a variety of verse-forms. Moreover, a number of the Sequences of which he may have been the author show survivals of the old rhythmical irregularities, and of assonance as yet unsuperseded by pure rhyme.

Before giving examples of Adam’s poems, a tribute should be paid to his great forerunner in the art of Latin verse. Adam doubtless was familiar with the hymns[316] of the most brilliant intellectual luminary of the departing generation, one Peter Abaelard, whom he may have seen in the flesh. Those once famous love-songs, written for Heloïse, perished (so far as we know) with the love they sang. Another fate--and perhaps Abaelard wished it so--was in store for the many hymns which he wrote for his sisters in Christ, the abbess and her nuns. They still exist,[317] and display a richness of verse-forms scarcely equalled even by the Sequences of Adam. In the development of Latin verse, Abaelard is Adam’s immediate predecessor; his verses being, as it were, just one stage inferior to Adam’s in sonorousness of line, in certainty of rhythm, and in purity of rhyme.

The “prose” Sequences were not the direct antecedents of Abaelard’s hymns. Yet both sprang from the freely devising spirit of melody and song; and therefore those hymns are of this free-born lineage more truly than they are descendants of antique forms. To be sure, every possible accentual rhythm, built as it must be of trochees, iambics, anapaests, or dactyls, has unavoidably some antique quantitative antecedent; because the antique measures exhausted the possibilities of syllabic combination. Yet antecedence is not source, and most of Abaelard’s verses by their form and spirit proclaim their genesis in the creative exigencies of song as loudly as they disavow any antique parentage.

For example, there may be some far echo of metrical asclepiads in the following accentual and rhyme-harnessed twelve-syllable verse:

“Advenit veritas, umbra praeteriit, Post noctem claritas diei subiit, Ad ortum rutilant superni luminis Legis mysteria plena caliginis.”

But the echo if audible is faint, and surely no antique whisper is heard in

“Est in Rama Vox audita Rachel flentis Super natos Interfectos Ejulantis.”

Nor in

“Golias prostratus est, Resurrexit Dominus, Ense jugulatus est Hostis proprio; Cum suis submersus est Ille Pharao.”

The variety of Abaelard’s verse seems endless. One or two further examples may or may not suggest any antecedents in those older forms of accentual verse which followed the former metres:

“Ornarunt terram germina, Nunc caelum luminaria. Sole, luna, stellis depingitur, Quorum multus usus cognoscitur.”

In this verse the first two lines are accentual iambic dimeters; while the last two begin each with two trochees, and close apparently with two dactyls. The last form of line is kept throughout in the following:

“Gaude virgo virginum gloria, Matrum decus et mater, jubila, Quae commune sanctorum omnium Meruisti conferre gaudium.”

Next come some simple five-syllable lines, with a catching rhyme:

“Lignum amaras Indulcat aquas Eis immissum. Omnes agones Sunt sanctis dulces Per crucifixum.”

In the following lines of ten syllables a dactyl appears to follow a trochee twice in each line:

“Tuba Domini, Paule, maxima, De caelestibus dans tonitrua, Hostes dissipans, cives aggrega.

Doctor gentium es praecipuus, Vas in poculum factus omnibus, Sapientiae plenum haustibus.”

These examples of Abaelard’s rhythms may close with the following curiously complicated verse:

“Tu quae carnem edomet Abstinentiam, Tu quae carnem decoret Continentiam, Tu velle quod bonum est his ingeris Ac ipsum perficere tu tribuis. Instrumenta Sunt his tua Per quos mira peragis, Et humana Moves corda Signis et prodigiis.”

In general, one observes in these verses that Abaelard does not use a pure two-syllable rhyme. The rhyme is always pure in the last syllable, and in the penult may either exist as a pure rhyme or simply as an assonance, or not at all.[318]

Probably Abaelard wrote his hymns in 1130, perhaps the very year when Adam as a youth entered the convent of St. Victor, lying across the Seine from Paris. The latter appears to have lived until 1192. Many Sequences have been improperly ascribed to him, and among the doubtful ones are a number having affinities with the older types. These may be anterior to Adam; for the greater part of his unquestionable Sequences are perfected throughout in their versification. Yet, on the other hand, one would expect some progression in works composed in the course of a long life devoted to such composition--a life covering a period when progressive changes were taking place in the world of thought beyond St. Victor’s walls. We take three examples of these Sequences. The first contains occasional assonance in place of rhyme, and uses many rhymes of one syllable. It appears to be an older composition improperly ascribed to Adam. The second is unquestionably his, in his most perfect form; the third may or may not be Adam’s; but is given for its own sake as a lovely lyric.[319]

The first example, probably written not much later than the year 1100, was designed for the Mass at the dedication of a church. The variety in the succession of couplets and strophes indicates a corresponding variation in the melody.

“Clara chorus dulce pangat voce nunc alleluia, Ad aeterni regis laudem qui gubernat omnia!

Cui nos universalis sociat Ecclesia, Scala nitens et pertingens ad poli fastigia;

Ad honorem cujus laeta psallamus melodia, Persolventes hodiernas laudes illi debitas.

O felix aula, quam vicissim Confrequentant agmina coelica, Divinis verbis alternatim Jungentia mellea cantica!

Domus haec, de qua vetusta sonuit historia Et moderna protestatur Christum fari pagina: ‘Quoniam elegi eam thronum sine macula, ‘Requies haec erit mea per aeterna saecula.

Turris supra montem sita, Indissolubili bitumine fundata Vallo perenni munita, Atque aurea columna Miris ac variis lapidibus distincta, Stylo subtili polita!

Ave, mater praeelecta, Ad quam Christus fatur ita Prophetae facundia: ‘Sponsa mea speciosa, ‘Inter filias formosa, ‘Supra solem splendida!

‘Caput tuum ut Carmelus ‘Et ipsius comae tinctae regis uti purpura; ‘Oculi ut columbarum, ‘Genae tuae punicorum ceu malorum fragmina!

‘Mel et lac sub lingua tua, favus stillans labia; ‘Collum tuum ut columna, turris et eburnea!’

Ergo nobis Sponsae tuae Famulantibus, o Christe, pietate solita Clemens adesse dignare Et in tuo salutari nos ubique visita.

Ipsaque mediatrice, summe rex, perpetue, Voce pura Flagitamus, da gaudere Paradisi gloria. Alleluia!”[320]

The second example is Adam’s famous Sequence for St. Stephen’s Day, which falls on the day after Christmas. It is throughout sustained and perfect in versification, and in substance a splendid hymn of praise.

“Heri mundus exultavit Et exultans celebravit Christi natalitia; Heri chorus angelorum Prosecutus est coelorum Regem cum laetitia.

Protomartyr et levita, Clarus fide, clarus vita, Clarus et miraculis, Sub hac luce triumphavit Et triumphans insultavit Stephanus incredulis.

Fremunt ergo tanquam ferae Quia victi defecere Lucis adversarii: Falsos testes statuunt, Et linguas exacuunt Viperarum filii.

Agonista, nulli cede, Certa certus de mercede, Persevera, Stephane; Insta falsis testibus, Confuta sermonibus Synagogam Satanae.

Testis tuus est in coelis, Testis verax et fidelis, Testis innocentiae. Nomen habes coronati: Te tormenta decet pati Pro corona gloriae.

Pro corona non marcenti Perfer brevis vim tormenti; Te manet victoria. Tibi fiet mors natalis, Tibi poena terminalis Dat vitae primordia.

Plenus Sancto Spiritu, Penetrat intuitu Stephanus coelestia. Videns Dei gloriam, Crescit ad victoriam, Suspirat ad praemia.

En a dextris Dei stantem, Jesum pro te dimicantem, Stephane, considera: Tibi coelos reserari, Tibi Christum revelari, Clama voce libera.

Se commendat Salvatori, Pro quo dulce ducit mori Sub ipsis lapidibus. Saulus servat omnium Vestes lapidantium, Lapidans in omnibus.

Ne peccatum statuatur His a quibus lapidatur, Genu ponit, et precatur, Condolens insaniae. In Christo sic obdormivit, Qui Christo sic obedivit, Et cum Christo semper vivit, Martyrum primitiae.”

* * * *[321]

The last example, in honour of St. Nicholas’s Day, is a lovely poem by whomsoever written. Its verses are extremely diversified. It begins with somewhat formal chanting of the saint’s virtues, in dignified couplets. Suddenly it changes to a joyful lyric, and sings of a certain sweet sea-miracle wrought by Nicholas. Then it spiritualizes the conception of his saintly aid to meet the call of the sin-tossed soul. It closes in stately manner in harmony with its liturgical function.

“Congaudentes exultemus vocali concordia Ad beati Nicolai festiva solemnia!

Qui in cunis adhuc jacens servando jejunia A papilla coepit summa promereri gaudia.

Adolescens amplexatur litterarum studia, Alienus et immunis ab omni lascivia.

Felix confessor, cujus fuit dignitatis vox de coelo nuntia! Per quam provectus, praesulatus sublimatur ad summa fastigia.

Erat in ejus animo pietas eximia, Et oppressis impendebat multa beneficia.

Auro per eum virginum tollitur infamia, Atque patris earumdem levatur inopia.

Quidam nautae navigantes, Et contra fluctuum saevitiam luctantes, Navi pene dissoluta, Jam de vita desperantes, In tanto positi periculo, clamantes Voce dicunt omnes una:

‘O beate Nicolae, Nos ad maris portum trahe De mortis angustia. Trahe nos ad portum maris, Tu qui tot auxiliaris, Pietatis gratia.’

Dum clamarent, nec incassum, ‘Ecce’ quidam dicens, ‘assum Ad vestra praesidia.’ Statim aura datur grata Et tempestas fit sedata: Quieverunt maria.

Nos, qui sumus in hoc mundo, Vitiorum in profundo Jam passi naufragia, Gloriose Nicolae Ad salutis portum trahe, Ubi pax et gloria.

Illam nobis unctionem Impetres ad Dominum, Prece pia, Qua sanavit laesionem Multorum peccaminum In Maria.

Hujus festum celebrantes gaudeant per saecula, Et coronet eos Christus post vitae curricula!”[322]

The foregoing examples of religious poetry may be supplemented by illustrations of the parallel evolution of more profane if not more popular verse. Any priority in time, as between the two, should lie with the former; though it may be the truer view to find a general synchronism in the secular and religious phases of lyric growth. But priority of originality and creativeness certainly belongs to that line of lyric evolution which sprang from religious sentiments and emotions. For the vagrant clerkly poet of the Court, the roadside, and the inn, used the forms of verse fashioned by the religious muse in the cloister and the school. Thus the development of secular Latin verse presents a derivative parallel to the essentially primary evolution of the Sequence or the hymn.

It was in Germany that the composition of Sequences was most zealously cultivated during the century following Notker’s death; and it was in Germany that the Sequence, in its earlier forms, exerted most palpable influence upon popular songs.[323] In these so-called Modi (Modus == song), as in the Sequence, rhythmical compositions may be seen progressing in the direction of regular rhythm, rhyme, and strophic form. As in the Sequences, the tune moulded the words, which in turn influenced the melody. The following is from the Modus Ottinc, a popular song composed about the year 1000 in honour of a victory of Otto III. over the Hungarians:

“His incensi bella fremunt, arma poscunt, hostes vocant, signa secuntur, tubis canunt. Clamor passim oritur et milibus centum Theutones inmiscentur.

Pauci cedunt, plures cadunt, Francus instat, Parthus fugit; vulgus exangue undis obstat; Licus rubens sanguine Danubio cladem Parthicam ostendebat.”

Another example is the Modus florum of approximately the same period, a song about a king who promised his daughter to whoever could tell such a lie as to force the king to call him a liar. It opens as follows:

“Mendosam quam cantilenam ago, puerulis commendatam dabo, quo modulos per mendaces risum auditoribus ingentem ferant.

Liberalis et decora cuidam regi erat nata quam sub lege hujusmodi procis opponit quaerendam.”

* * * *[324]

Here the rhyme still is rude and the rhythm irregular. The following dirge, written thirty or forty years later on the death of the German emperor, Henry II., shows improvement:

“Lamentemur nostra, Socii, peccata, amentemur et ploremus! Quare tacemus? Pro iniquitate corruimus late; scimus coeli hinc offensum regem immensum. Heinrico requiem, rex Christe, dona perennem.”[325]

We may pass on into the twelfth century, still following the traces of that development of popular verse which paralleled the evolution of the Sequence. We first note some catchy rhymes of a German student setting out for Paris in quest of learning and intellectual novelty:

“Hospita in Gallia nunc me vocant studia. Vadam ergo; flens a tergo socios relinquo. Plangite discipuli, lugubris discidii tempore propinquo. Vale, dulcis patria, suavis Suevorum Suevia! Salve dilecta Francia, philosophorum curia! Suscipe discipulum in te peregrinum, Quem post dierum circulum remittes Socratinum.”[326]

This Suabian, singing his uncouth Latin rhymes, and footing his way to Paris, suggests the common, delocalized influences which were developing a mass of student-songs, “Carmina Burana,” or “Goliardic” poetry. The authors belonged to that large and broad class of clerks made up of any and all persons who knew Latin. The songs circulated through western Europe, and their home was everywhere, if not their origin. Some of them betray, as more of them do not, the author’s land and race. Frequently of diabolic cleverness, gibing, amorous, convivial, they show the virtuosity in rhyme of their many makers. Like the hymns and later Sequences, they employed of necessity those accentual measures which once had their quantitative prototypes in antique metres. But, again like the hymns and Sequences, they neither imitate nor borrow, but make use of trochaic, iambic, or other rhythms as the natural and unavoidable material of verse. Their strophes are new strophes, and not imitations of anything in quantitative poetry. So these songs were free-born, and their development was as independent of antique influence as the melodies which ever moulded them to more perfect music. Many and divers were their measures. But as that great strophe of Adam’s Heri mundus exultavit (the strophe of the Stabat Mater) was of mightiest dominance among the hymns, so for these student-songs there was also one measure that was chief. This was the thirteen-syllable trochaic line, with its lilting change of stress after the seventh syllable, and its pure two-syllable rhyme. It is the line of the Confessio poetae, or Confessio Goliae, where nests that one mediaeval Latin verse which everybody still knows by heart:

“Meum est propositum in taberna mori, Vinum sit appositum morientis ori, Tunc cantabunt laetius angelorum chori, ‘Sit Deus propitius huic potatori.’”

It is also the line of the quite charming Phyllis and Flora of the Carmina Burana:

“Erant ambae virgines et ambae reginae, Phyllis coma libera, Flora compto crine: Non sunt formae virginum, sed formae divinae, Et respondent facie luci matutinae.”[327]

Another common measure is the twelve-syllable dactylic line of the famous Apocalypsis Goliae Episcopi:

“Ipsam Pythagorae formam aspicio, Inscriptam artium schemate vario. An extra corpus sit haec revelatio, Utrum in corpore, Deus scit, nescio. In fronte micuit ars astrologica; Dentium seriem regit grammatica; In lingua pulcrius vernat rhetorica, Concussis aestuat in labiis logica.”

An example of the not infrequent eight-syllable line is afforded by that tremendous satire against papal Rome, beginning:

“Propter Sion non tacebo, Sed ruinam Romae flebo, Quousque justitia Rursus nobis oriatur, Et ut lampas accendatur Justus in ecclesia.”

Here the last line of the verse has but seven syllables, as is the case in the following verse of four lines:

“Vinum bonum et suave, Bonis bonum, pravis prave, Cunctis dulcis sapor, ave, Mundana laetitia!”

But the eight-syllable lines may be kept throughout, as in the following lament over life’s lovely, pernicious charm, so touching in its expression of the mortal heartbreak of mediaeval monasticism:

“Heu! Heu! mundi vita, Quare me delectas ita? Cum non possis mecum stare, Quid me cogis te amare?

* * * *

Vita mundi, res morbosa, Magis fragilis quam rosa, Cum sis tota lacrymosa, Cur es mihi graciosa?”[328]

Our consideration of the different styles of mediaeval Latin prose and the many novel forms of mediaeval Latin verse has shown how radical was the departure of the one and the other from Cicero and Virgil. Through such changes Latin continued to prove itself a living language. Yet its vitality was doomed to wane before the rivalry of the vernacular tongues. The vivida vis, the capability of growth, had well-nigh passed from Latin when Petrarch was born. In endeavouring to maintain its supremacy as a literary vehicle he was to hold a losing brief, nor did he strengthen his cause by attempting to resuscitate a classic style of prose and metre. The victory of the vernacular was announced in Dante’s De vulgari eloquentia and demonstrated beyond dispute in his Divina Commedia.

A long and for the most part peaceful and unconscious conflict had led up to the victory of what might have been deemed the baser side. For Latin was the sole mediaeval literature that was born in the purple, with its stately lineage of the patristic and the classical back of it. Latin was the language of the Roman world and the vehicle of Latin Christianity. It was the language of the Church and its clergy, and the language of all educated people. Naturally the entire contents of existing and progressive Christian and antique culture were contained in the mediaeval Latin literature, the literature of religion and of law and government, of education and of all serious knowledge. It was to be the primary literature of mediaeval thought; from which passed over the chief part of whatever thought and knowledge the vernacular literatures were to receive. For scholars who follow, as we have tried to, the intellectual and the deeper emotional life of the Middle Ages, the Latin literature yields the incomparably greater part of the material of our study. It has been our home country, from which we have made casual excursions into the vernacular literatures.

These existed, however, from the earliest mediaeval periods, beginning, if one may say so, in oral rather than written documents. We read that Charlemagne caused a book to be made of Germanic poems, which till then presumably had been carried in men’s memories. The Hildebrandslied is supposed to have been one of them.[329] In the Norse lands, the Eddas and the matter of the Sagas were repeated from generation to generation, long before they were written down. The habit, if not the art, of writing came with Christianity and the Latin education accompanying it. Gradually a written literature in the Teutonic languages was accumulated. Of this there was the heathen side, well represented in Anglo-Saxon and the Norse; while in Old High German the Hildebrandslied remains, heathen and savage. Thereafter, a popular and even national or rather racial poetry continued, developed, and grew large, notwithstanding the spread of Latin Christianity through Teutonic lands. Of this the Niebelungenlied and the Gudrun are great examples. But individual still famous poets, who felt and thought as Germans, were also composing sturdily in their vernacular--a lack of education possibly causing them to dictate (dictieren, dichten) rather than to write. Of these the greatest were Wolfram von Eschenbach and Walther von der Vogelweide. With them and after them, or following upon the Niebelungenlied, came a mass of secular poetry, some of which was popular and national, reflecting Germanic story, while some of it was courtly, transcribing the courtly poetry which by the twelfth century flourished in Old French.

Thus bourgeoned the secular branches of German literature. On the other hand, from the time of Christianity’s introduction, the Germans felt the need to have the new religion presented to them in their own tongues. The labour of translation begins with Ulfilas, and is continued with conscientious renderings of Scripture and Latin educational treatises, and also with such epic paraphrase as the Heliand and the more elegiac poems of the Anglo-Saxon Cynewulf.[330] Also, at least in Germany, there comes into existence a full religious literature, not stoled or mitred, but popular, non-academic, and non-liturgical; of which quantities remain in the Middle High German of the thirteenth and fourteenth centuries.[331]

Obviously the Romance vernacular literatures had a different commencement. The languages were Latin, simply Latin, in their inception, and never ceased to be legitimate continuations and developments of the popular or Vulgar Latin of the Roman Empire. But as the speech of children, women, and unlettered people, they were not thought of as literary media. All who could write understood perfectly the better Latin from which these popular dialects were slowly differentiating themselves. And as they progressed to languages, still their life and progress lay among peoples whose ancestral tongue was the proper Latin, which all educated men and women still understood and used in the serious business of life.

But sooner or later men will talk and sing and think and compose in the speech which is closest to them. The Romance tongues became literary through this human need of natural expression. There always had been songs in the old Vulgar Latin; and such did not cease as it gradually became what one may call Romance. Moreover, the clergy might be impelled to use the popular speech in preaching to the laity, or some unlearned person might compose religious verses. Almost the oldest monument of Old French is the hymn in honour of Ste. Eulalie. Then as civilization advanced from the tenth to the twelfth century, in southern and northern France for example, and the langue d’oc and the langue d’oil became independent and developed languages, unlearned men, or men with unlearned audiences, would unavoidably set themselves to composing poetry in these tongues. In the North the chansons de geste came into existence; in the South the knightly Troubadours made love-lyrics. Somehow, these poems were written down, and there was literature for men’s eyes as well as for men’s ears.

In the twelfth century and the thirteenth, the audiences for Romance poetry, especially through the regions of southern and northern France, increased and became diversified. They were made up of all classes, save the brute serf, and of both sexes. The chansons de geste met the taste of the feudal barons; the Arthurian Cycle charmed the feudal dames; the coarse fabliaux pleased the bourgeoisie; and chansons of all kinds might be found diverting by various people. If the religious side was less strongly represented, it was because the closeness of the language to the clerkly and liturgical Latin left no such need of translations as was felt from the beginning among peoples of Germanic speech. Still the Gospels, especially the apocryphal, were put into Old French, and miracles de Notre Dame without number; also legends of the saints, and devout tales of many kinds.

The accentual verses of the Romance tongues had their source in the popular accentual Latin verse of the later Roman period. Their development was not unrelated to the Latin accentual verse which was superseding metrical composition in the centuries extending, one may say, from the fifth to the eleventh. Divergences between the Latin and Romance verse would be caused by the linguistic evolution through which the Romance tongues were becoming independent languages. Nor was this divergence uninfluenced by the fact that Romance poetry was popular and usually concerned with topics of this life, while Latin poetry in the most striking lines of its evolution was liturgical; and even when secular in topic tended to become learned, since it was the product of the academically educated classes. Much of the vernacular (Romance as well as Germanic) poetry in the Middle Ages was composed by unlearned men who had at most but a speaking acquaintance with Latin, and knew little of the antique literature. This was true, generally, of the Troubadours of Provence, of the authors of the Old French chansons de geste, and of such a courtly poet as Chrétien de Troies; true likewise of the great German Minnesingers, epic poets rather, Gottfried von Strassburg, Wolfram von Eschenbach, and Walther von der Vogelweide.

On the other hand, vernacular poetry might be written by highly learned men, of whom the towering though late example would be Dante Alighieri. An instance somewhat nearer to us at present is Jean Clopinel or de Meun, the author of the second part of the Roman de la rose. His extraordinary Voltairean production embodies all the learning of the time; and its scholar-author was a man of genius, who incorporated his learning and the fruit thereof very organically in his poem.

But here, at the close of our consideration of the mediaeval appreciation of the Classics, and the relations between the Classics and mediaeval Latin literature, we are not occupied with the very loose and general question of the amount of classical learning to be found in the vernacular literatures of western Europe. That was a casual matter depending on the education and learning, or lack thereof, of the author of the given piece. But it may be profitable to glance at the passing over of antique themes of story into mediaeval vernacular literature, and the manner of their refashioning. This is a huge subject, but we shall not go into it deeply, or pursue the various antique themes through their endless propagations.

Antique stories aroused and pointed the mediaeval imagination; they made part of the never-absent antique influence which helped to bring the mediaeval peoples on and evoke in them an articulate power to fashion and create all kinds of mediaeval things. But with antique story as with other antique material, the Middle Ages had to turn it over and absorb it, and also had to become themselves with power, before they could refashion the antique theme or create along its lines. All this had taken place by the middle of the twelfth century. As to choice of matter, twelfth-century refashioners would either select an antique theme suited to their handling, or extract what appealed to them from some classic story. In the one case as in the other they might recast, enlarge, or invent as their faculties permitted.

Mediaeval taste took naturally to the degenerate productions of the late antique or transition centuries. The Greek novels seem to have been unknown, except the Apollonius of Tyre.[332] But the congenially preposterous story of Alexander by the Pseudo-Callisthenes was available in a sixth-century Latin version, and was made much of. Equally popular was the debasement and intentional distortion of the Tale of Troy in the work of “Dares” and “Dictys”; other tales were aptly presented in Ovid’s Metamorphoses; and the stories of Hero and Leander, of Pyramus and Thisbe, of Narcissus, Orpheus, Cadmus, Daedalus, were widely known and often told in the Middle Ages.

The mediaeval writers made as if they believed these tales. At least they accepted them as they would have their own audiences accept their recasting, with little reflection as to whether truth or fable. But was the work of the refashioners conscious fiction? Scarcely, when it simply recast the old story in mediaevalizing paraphrase; but when the poet went on and wove out of ten lines a thousand, he must have known himself devising.

The mediaeval treatment of classic themes of history and epic poetry shows how the Middle Ages refashioned and reinspired after their own image whatever they took from the antique. If it was partly their fault, it was also their unavoidable misfortune that they received these great themes in the literary distortions of the transition centuries. Doubtless they preferred encyclopaedic dulness to epic unity; they loved fantasy rather than history, and of course delighted in the preposterous, as they found it in the Latin version of the Life and Deeds of Alexander. As for the Tale of Troy, the real Homer never reached them: and perhaps mediaeval peoples who were pleased, like Virgil’s Romans, to draw their origins from Trojan heroes, would have rejected Homer’s story just as “Dares” and “Dictys,” whoever they were, did.[333] The true mediaeval rifacimenti, to wit, the retellings of these tales in the vernacular, mirror the mediaeval mind, the mediaeval character, and the whole panorama of mediaeval life and fantasy.

The chief epic themes drawn from the antique were the Tales of Troy and Thebes and the story of Aeneas. In verse and prose they were retold in the vernacular literatures and also in mediaeval Latin.[334] We shall, however, limit our view to the primary Old French versions, which formed the basis of compositions in German, Italian, English, as well as French. They were composed between 1150 and 1170 by Norman-French trouvères. The names of the authors of the Roman de Thebes and the Eneas are unknown; the Roman de Troie was written by Benoit de St. More.

These poems present a universal substitution of mediaeval manners and sentiment. For instance, one observes that the epic participation of the pagan gods is minimized, and in the Roman de Troie even discarded; necromancy, on the other hand, abounds. A more interesting change is the transformation of the love episode. That had become an epic adjunct in Alexandrian Greek literature as early as the third century before Christ. It existed in the antique sources of all these mediaeval poems. Nevertheless the romantic narratives of courtly love in the latter are mediaeval creations.

The Eneas relates the love of Lavinia for the hero, most correctly reciprocated by him. The account of it fills fourteen hundred lines, and has no precedent in Virgil’s poem, which in other respects is followed closely. Lavinia sees Aeneas from her tower, and at once understands a previous discourse of her mother on the subject of love. She utters love’s plaints, and then faints because Aeneas does not seem to notice her. After which she passes a sleepless night. The next morning she tells her mother, who is furious, since she favours Turnus as a suitor. The girl falls senseless, but coming to herself when alone, she recalls love’s stratagems, and attaches a letter to an arrow which is shot so as to fall at Aeneas’s feet. Aeneas reads the letter, and turns and salutes the fair one furtively, that his followers may not see. Then he enters his tent and falls so sick with love that he takes to his bed. The next day Lavinia watches for him, and thinks him false, till at last, pale and feeble, he appears, and her heart acquits him; amorous glances now fly back and forth between them.[335]

To have this jaded jilt grow sick with love is a little too much for us, and Aeneas is absurd; but the universal human touches us quite otherwise in the sweet changing heart of Briseida in the Roman de Troie. There is no ground for denying to Benoit of St. More his meed of fame for creating this charming person and starting her upon her career. Following “Dares,” Benoit calls her Briseida; but she becomes the Griseis of Boccaccio’s Filostrato; and what good man does not sigh and love her under the name of Cressid in Chaucer’s poem, though he may deplore her somewhat brazen heartlessness in Shakespeare’s play.

It is not given to all men, or women, in presence or absence, in life and death, to love once and forever. One has the stable heart, another’s fancy is quickly turned. Sometimes, of course, our moral sledge-hammers should be brought to bear; but a little hopeless smile may be juster, as we sigh “she (it is more often “he”) couldn’t help it.” Such was Briseida, the sweet, loving, helpless--coquette? jilt? flirt? these words are all too belittling to tell her truly. Benoit knew better. He took her dry-as-dust characterization from “Dares”; he gave it life, and then let his fair creature do just the things she might, without ceasing to be she.

The abject “Dares” (Benoit may have had a better story under that name) in his catalogue of characters has this: “Briseidam formosam, alta statura, candidam, capillo flavo et molli, superciliis junctis, oculis venustis, corpore aequali, blandam, affabilem, verecundam, animo simplici [O ye gods!], piam.” He makes no other mention of this tall, graceful girl, with her lovely eyes and eyebrows meeting above, her modest, pleasant mien, and simple soul; for simple she was, and therein lies the direst bit of truth about her. For it is simple and uncomplex to take the colour of new scenes and faces, and of new proffered love when the old is far away.

Now see what Benoit does with this dust: Briseida is the daughter of Calchas, a Trojan seer who had passed over to the Greeks, warned by Apollo. He is in the Grecian host, but his daughter is in Troy. Benoit says, she was engaging, lovelier and fairer than the fleur de lis--though her eyebrows grew rather too close together. “Beaux yeux” she had, “de grande manière,” and charming was her talk, and faultless her breeding as her dress. Much was she loved and much she loved, although her heart changed; and she was very loving, simple, and kind:

“Molt fu amée et molt ameit, Mes sis corages li changeit; Et si esteit molt amorose, Simple et almosniere et pitose.”[336]

Calchas wants his daughter, and Priam decides to send her. There is truce between the armies. Troilus, Troy’s glorious young knight, matchless in beauty, in arms second only to his brother Hector, is beside himself. He loves Briseida, and she him. What tears and protestations, and what vows! But the girl must go to her father.

On the morrow the young dame has other cares--to see to the packing of her lovely dresses and put on the loveliest of them; over all she threw a mantle inwoven with the flowers of Paradise. The Trojan ladies add their tears to the damsel’s; for she is ready to die of grief at leaving her lover. Benoit assures us that she will not weep long; it is not woman’s way, he continues somewhat mediaevally.

The brilliant cortège is met by one still more distinguished from the Grecian host. Troilus must turn back, and the lady passes to the escort of Diomede. She was young; he was impetuous; he looks once, and then greets her with a torrential declaration of love. He never loved before!! He is hers, body and soul and high emprize. Briseida speaks him fair:

“At this time it would be wrong for me to say a word of love. You would deem me light indeed! Why, I hardly know you! and girls so often are deceived by men. What you have said cannot move a heart grieving, like mine, to lose my--friend, and others whom I may never see again. For one of my station to speak to you of love! I have no mind for that. Yet you seem of such rank and prowess that no girl under heaven ought to refuse you. It is only that I have no heart to give. If I had, surely I could hold none dearer than you. But I have neither the thought nor power, and may God never give it to me!”[337]

One need not tell the flash of joy that then was Diomede’s, nor the many troubles that were to be his before at last Briseida finds that her heart has indeed turned to this new lover, always at hand, courting danger for her sake, and at last wounded almost to death by Troilus’s spear. The end of the story is assured in her first discreetly halting words.

Enough has been said to show how far Benoit was from Omers qui fu clers merveillos, and what a story in some thirty thousand lines he has made of the dry data of “Dares” and “Dictys.” His Briseida, with her changing heart, was to rival steadier-minded but not more lovable women of mediaeval fiction--Iseult or Guinevere. And although the far-off echo of Briseid’s name comes from the ancient centuries, none the less she is as entirely a mediaeval creation as Lancelot’s or Tristram’s queen. Thus the Middle Ages took the antique narrative, and created for themselves within the altered lines of the old tale.[338]

The transformation of themes of epic story in vernacular mediaeval versions is paralleled by mediaeval refashionings of historical subjects which had been fictionized before the antique period closed. A chief example is the romance of Alexander the Great. The antique source was the conqueror’s Life and Deeds, written by one who took the name of Alexander’s physician, Callisthenes. The author was some Egyptian Greek of the first century after Christ. His work is preposterous from the beginning to the end, and presents a succession of impossible marvels performed by the somewhat indistinguishable heroes of the story. Its qualities were reflected in the Latin versions, which in turn were drawn upon by the Old French rhyming romancers. The latter mediaevalized and feudalized the tale. Nor were they halted by any absurdity, or conscious of the characterlessness of the puppets of the tale.[339]

Further to pursue the fortunes of antique themes in mediaeval literature would lead us beyond bounds. Yet mention should be made of the handling of minor narratives, as the Metamorphoses of Ovid. They were very popular, and from the twelfth century on, paraphrases or refashionings were made of many of them. These added to the old tale the interesting mediaeval element of the moral or didactic allegory. The most prodigious instance of this moralizing of Ovid was the work of Chrétien Légouais, a French Franciscan who wrote at the beginning of the fourteenth century. In some seventy thousand lines he presented the stories of the Metamorphoses, the allegories which he discovered in them, and the moral teaching of the same.[340]

Equally interesting was the application of allegory to Ovid’s Ars amatoria. The first translators treated this frivolous production as an authoritative treatise upon the art of winning love. So it was perhaps, only Ovid was amusing himself by making a parable of his youthful diversions. Mediaeval imitators changed the habits of the gilded youth of Rome to suit the society of their time. But they did more, being votaries of courtly love. Such love in the Middle Ages had its laws which were prone to deduce their lineage from Ovid’s verses. But its uplifted spirit revelled in symbolism; and tended to change to spiritual allegory whatever authority it imagined itself based upon, even though the authority were a book as dissolute, when seriously considered, as the Ars amatoria. It is strange to think of this poem as the very far off street-walking prototype of De Lorris’s Roman de la rose.

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XXXIII. MEDIAEVAL APPROPRIATION OF THE ROMAN LAW

I. THE FONTES JURIS CIVILIS.

II. ROMAN AND BARBARIAN CODIFICATION.

III. THE MEDIAEVAL APPROPRIATION.

IV. CHURCH LAW.

V. POLITICAL THEORIZING.

Classical studies, and the gradual development of mediaeval prose and verse, discussed in the preceding chapters, illustrate modes of mediaeval progress. But of all examples of mediaeval intellectual growth through the appropriation of the antique, none is more completely illuminating than the mediaeval use of Roman law. As with patristic theology and antique philosophy, the Roman law was crudely taken and then painfully learned, till in the end, vitally and broadly mastered, it became even a means and mode of mediaeval thinking. Its mediaeval appropriation illustrates the legal capacity of the Middle Ages and their concern with law both as a practical business and an intellectual interest.

Primitive law is practical; it develops through the adjustment of social exigencies. Gradually, however, in an intelligent community which is progressing under favouring influences, some definite consciousness of legal propriety, utility, or justice, makes itself articulate in statements of general principles of legal right and in a steady endeavour to adjust legal relationships and adjudicate actual controversies in accordance. This endeavour to formulate just and useful principles, and decide novel questions in accordance with them, and enunciate new rules in harmony with the body of the existing law, is jurisprudence, which thus works always for concord, co-ordination, and system.

There was a jurisprudential element in the early law of Rome. The Twelve Tables are trenchant announcements of rules of procedure and substantial law. They have the form of the general imperative: “Thus let it be; If one summons [another] to court, let him go; As a man shall have appointed by his Will, so let it be; When one makes a bond or purchase,[341] as the tongue shall have pronounced it, so let it be.” These statements of legal rules are far from primitive; they are elastic, inclusive, and suited to form the foundation of a large and free legal development. And the consistency with which the law of debt was carried out to its furthest cruel conclusion, the permitted division of the body of the defaulting debtor among several creditors,[342] gave earnest of the logic which was to shape the Roman law in its humaner periods. Moreover, there is jurisprudence in the arrangement of the Laws of the Twelve Tables. Nevertheless the jurisprudential element is still but inchoate.

The Romans were endowed with a genius for law. Under the later Republic and the Empire, the minds of their jurists were trained and broadened by Greek philosophy and the study of the laws of Mediterranean peoples; Rome was becoming the commercial as well as social and political centre of the world. From this happy combination of causes resulted the most comprehensive body of law and the noblest jurisprudence ever evolved by a people. The great jurisconsults of the Empire, working upon the prior labours of long lines of older praetors and jurists, perfected a body of law of well-nigh universal applicability, and throughout logically consistent with general principles of law and equity, recognized as fundamental. These were in part suggested by Greek philosophy, especially by Stoicism as adapted to the Roman temperament. They represented the best ethics, the best justice of the time. As principles of law, however, they would have hung in the air, had not the practical as well as theorizing genius of the jurisconsults been equal to the task of embodying them in legal propositions, and applying the latter to the decision of cases. Thus was evolved a body of practical rules of law, controlled, co-ordinated, and, as one may say, universalized through the constant logical employment of sound principles of legal justice.[343]

The Roman law, broadly taken, was heterogeneous in origin, and complex in its modes of growth. The great jurisconsults of the Empire recognized its diversity of source, and distinguished its various characteristics accordingly. They assumed (and this was a pure assumption) that every civilized people lived under two kinds of law, the one its own, springing from some recognized law-making source within the community; the other the jus gentium, or the law inculcated among all peoples by natural reason or common needs.

The supposed origin of the jus gentium was not simple. Back in the time of the Republic it had become necessary to recognize a law for the many strangers in Rome, who were not entitled to the protection of Rome’s jus civile. The edict of the praetor Peregrinus covered their substantial rights, and sanctioned simple modes of sale and lease which did not observe the forms prescribed by the jus civile. So this edict became the chief source of the jus gentium so-called, to wit, of those liberal rules of law which ignored the peculiar formalities of the stricter law of Rome. Probably foreign laws, that is to say, the commercial customs of the Mediterranean world, were in fact recognized; and their study led to a perception of elements common to the laws of many peoples. At all events, in course of time the jus gentium came to be regarded as consisting of universal rules of law which all peoples might naturally follow.

The recognition of these simple modes of contracting obligations, and perhaps the knowledge that certain rules of law obtained among many peoples, fostered the conception of common or natural justice, which human reason was supposed to inculcate everywhere. Such a conception could not fail to spring up in the minds of Roman jurists who were educated in Stoical philosophy, the ethics of which had much to say of a common human nature. Indeed the idea naturalis ratio was in the air, and the thought of common elements of law and justice which naturalis ratio inter omnes homines constituit, lay so close at hand that it were perhaps a mistake to try to trace it to any single source. Practically the jus gentium became identical with jus naturale, which Ulpian imagined as taught by nature to all animals; the jus gentium, however, belonged to men alone.[344]

Thus rules which were conceived as those of the jus gentium came to represent the principles of rational law, and impressed themselves upon the development of the jus civile. They informed the whole growth and application of Roman law with a breadth of legal reason. And conceptions of a jus naturale and a jus gentium became cognate legal fictions, by the aid of which praetor and jurisconsult might justify the validity of informal modes of contract. In their application, judge and jurist learned how and when to disregard the formal requirements of the older and stricter Roman law, and found a way to the recognition of what was just and convenient. These fictions agreed with the supposed nature and demands of aequitas, which is the principle of progressive and discriminating legal justice. Law itself (jus) was identical with aequitas conceived (after Celsus’s famous phrase) as the ars boni et aequi.

The Roman law proper, the jus civile, had multifarious sources. First the leges, enacted by the people; then the plebiscita, sanctioned by the Plebs; the senatus consulta, passed by the Senate; the constitutiones and rescripta[345] principum, ordained by the Emperor. Excepting the rescripta, these (to cover them with a modern expression) were statutory. They were laws announced at a specific time to meet some definite exigency. Under the Empire, the constitutiones principum became the most important, and then practically the only kind of legal enactment.

Two or three other sources of Roman law remain for mention: first, the edicta of those judicial magistrates, especially the praetors, who had the authority to issue them. In his edict the praetor announced what he held to be the law and how he would apply it. The edict of each successive praetor was a renewal and expansion or modification of that of his predecessor. Papinian calls this source of law the “jus praetorium, which the praetors have introduced to aid, supplement, or correct the jus civile for the sake of public utility.”

Next, the responsa or auctoritas jurisprudentium, by which were intended the judicial decisions and the authority of the legal writings of the famous jurisconsults. Imperial rescripts recognized these responsa as authoritative for the Roman courts; and some of the emperors embodied portions of them in formally promulgated collections, thereby giving them the force of law. Justinian’s Digest is the great example of this method of codification.[346] One need scarcely add that the authoritative writings and responsa of the jurisconsults extended and applied the jus gentium, that is to say, the rules and principles of the best-considered jurisprudence, freed so far as might be from the formal peculiarities of the jus civile strictly speaking. And the same was true of the praetorian edict. The Roman law also gave legal effect to inveterata consuetudo, the law which is sanctioned by custom: “for since the laws bind us because established by the decision of the people, those unwritten customs which the people have approved are binding.”[347]

Simply naming the sources of Roman law indicates the ways in which it grew, and the part taken by the jurisconsults in its development as a universal and elastic system. It was due to their labours that legal principles were logically carried out through the mass of enactments and decisions; that is, it was due to their large consideration of the body of existing law, that each novel decision--each case of first impression--should be a true legal deduction, and not a solecism; and that even the new enactments should not create discordant law. And it was due to their labours that as rules of law were called forth, they were stated clearly and in terms of well-nigh universal applicability.

The Laws of the Twelve Tables showed the action of legal intelligence and the result of much experience. They sanctioned a large contractual freedom, if within strict forms; they stated broadly the right of testamentary disposition. Many of their provisions, which commonly were but authoritative recognitions, were expressions of basic legal principles, the application of which might be extended to meet the needs of advancing civic life. And through the enlargement of this fundamental collection of law, or deviating from it in accordance with principles which it implicitly embodied, the jurists of the Republic and the first centuries of the Empire formed and developed a body of private and public law from which the jurisprudence of Europe and America has never even sought to free itself.

Roman jurisprudence was finally incorporated in Justinian’s Digest, which opens with a statement of the most general principles, even those which would have hung in the air but for the Roman genius of logical and practical application to the concrete instance. “Jus est ars boni et aequi”--it is better to leave these words untranslated, such is the wealth of significance and connotation which they have acquired. “Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.”

The first pregnant phrase is from the older jurist Celsus; the longer passage is by the later Ulpian, and may be taken as an expansion of the first. Both the one and the other expressed the most advanced and philosophic ethics of the ancient world. They are both in the first chapter of the Digest, wherein they become enactments. An extract from Paulus follows: “Jus has different meanings; that which is always aequum ac bonum is called jus, to wit, the jus naturale: jus also means the jus civile, that which is expedient (utile) for all or most in any state. And in our state we have also the praetorian jus.” This passage indicates the course of the development of the Roman law: the fundamental and ceaselessly growing core of specifically Roman law, the jus civile; its continual equitable application and enlargement, which was the praetor’s contribution; and the constant application of the aequum ac bonum, observed perhaps in legal rules common to many peoples, but more surely existing in the high reasoning of jurists instructed in the best ethics and philosophy of the ancient world, and learned and practised in the law.

Now notice some of the still general, but distinctly legal, rather than ethical, rules collected in the Digest: The laws cannot provide specifically for every case that may arise; but when their intent is plain, he who is adjudicating a cause should proceed ad similia, and thus declare the law in the case.[348] Here is stated the general and important formative principle, that new cases should be decided consistently and eleganter, which means logically and in accordance with established rules. Yet legal solecisms will exist, perhaps in a statute or in some rule of law evoked by a special exigency. Their application is not to be extended. For them the rule is: “What has been accepted contra rationem juris, is not to be drawn out (producendum) to its consequences,”[349] or again: “What was introduced not by principle, but at first through error, does not obtain in like cases.”[350]

These are true principles making for the consistent development of a body of law. Observe the scope and penetration of some other general rules: “Nuptias non concubitus, sed consensus facit.”[351] This goes to the legal root of the whole conception of matrimony, and is still the recognized starting-point of all law upon that subject. Again: “An agreement to perform what is impossible will not sustain a suit.”[352] This is still everywhere a fundamental principle of the law of contracts. Again: “No one can transfer to another a greater right than he would have himself,”[353] another principle of fundamental validity, but, of course, like all rules of law subject in its application to the qualifying operation of other legal rules.

Roman jurisprudence recognized the danger of definition: “Omnis definitio in jure civili periculosa est.”[354] Yet it could formulate admirable ones; for example: “Inheritance is succession to the sum total (universum jus) of the rights of the deceased.”[355] This definition excels in the completeness of its legal view of the matter, and is not injured by the obvious omission to exclude those personal privileges and rights of the deceased which terminate upon his death.

Thus we note the sources and constructive principles of the Roman law. We observe that while certain of the former might be called “statutory,” the chief means and method of development was the declarative edict of the praetor and the trained labour of the jurisconsults. In these appears the consummate genius of Roman jurisprudence, a jurisprudence matchless in its rational conception of principles of justice which were rooted in a philosophic consideration of human life; matchless also in its carrying through of such principles into the body of the law and the decision of every case.

The Roman law was the creation of the genius of Rome and also the product of the complex civilization of which Rome was the kinetic centre. As the Roman power crumbled, Teutonic invaders established kingdoms within territories formerly subject to Rome and to her law--a law, however, which commonly had been modified to suit the peoples of the provinces. Those territories retained their population of provincials. The invaders, Burgundians, Visigoths, and Franks, planting themselves in the different parts of Gaul, brought their own law, under which they continued to live, but which they did not force upon the provincial population. On the contrary, Burgundian and Visigothic kings promulgated codes of Roman law for the latter. And these represent the forms in which the Roman law first passed over into modes of acceptance and application no longer fully Roman, but partly Teutonic and incipiently mediaeval. They exemplify, moreover, the fact, so many aspects of which have been already noticed, of transitional and partly barbarized communities drawing from a greater past according to their simpler needs.

One may say that these codes carried on processes of decline from the full creative genius of Roman jurisprudence, which had irrevocably set in under the Empire in the fourth and fifth centuries. The decline lay in a weakening of the intellectual power devoted to the law and its development. The living growth of the praetorian edict had long since come to an end; and now a waning jurisprudential intelligence first ceased to advance the development of law, and then failed to save from desuetude the achieved jurisprudence of the past. So the jurisprudential and juridical elements (jus) fell away from the law, and the imperial constitutions (leges) remained the sole legal vehicle and means of amendment. The need of codification was felt, and that preserving and eliminating process was entered upon.

Roman codification never became a reformulation. The Roman Codex was a collection of existing constitutions. A certain jurist (“Gregorianus”) made an orderly and comprehensive collection of such as early as the close of Diocletian’s reign; it was supplemented by the work of another jurist (“Hermogenianus”) in the time of Constantine. Each compilation was the work of a private person, who, without authority to restate, could but compile the imperial constitutions. The same method was adopted by the later codifications, which were made and promulgated under imperial decree. There were two which were to be of supreme importance for the legal future of western Europe, the Theodosian Code and the legislation of Justinian. The former was promulgated in 438 by Theodosius II. and Valentinianus. The emperors formally announce that “in imitation (ad similitudinem) of the Code of Gregorianus and Hermogenianus we have decreed that all the Constitutions should be collected” which have been promulgated by Constantine and his successors, including ourselves.[356] So the Theodosian Code contains many laws of the emperors who decreed it.[357] It was thus a compilation of imperial constitutions already in existence, or decreed from year to year while the codification was in process (429-438). Every constitution is given in the words of its original announcement, and with the name of the emperor. Evidently this code was not a revision of the law.

The codification of Justinian began with the promulgation of the Codex in 529. That was intended to be a compilation of the constitutions contained in the previous codes and still in force, as well as those which had been decreed since the time of Theodosius. The compilers received authority to omit, abbreviate, and supplement. The Codex was revised and promulgated anew in 534. The constitutions which were decreed during the remainder of Justinian’s long reign were collected after his death and published as Novellae. So far there was nothing radically novel. But, under Justinian, life and art seemed to have revived in the East; and Tribonian, with the others who assisted in these labours, had larger views of legal reform and jurisprudential conservation than the men who worked for Theodosius. Justinian and his coadjutors had also serious plans for improving the teaching of the law, in the furtherance of which the famous little book of Institutes was composed after the model, and to some extent in the words, of the Institutes of Gaius. It was published in 533.

The great labour, however, which Justinian and his lawyers were as by Providence inspired to achieve was the encyclopaedic codification of the jurisprudential law. Part of the emperor’s high-sounding command runs thus:

“We therefore command you to read and sift out from the books pertaining to the jus Romanum composed by the ancient learned jurists (antiqui prudentes) to whom the most sacred emperors granted authority to indite and interpret the laws, so that the material may all be taken from these writers, and incongruity avoided--for others have written books which have been neither used nor recognized. When by the favour of the Deity this material shall have been collected, it should be reared with toil most beautiful, and consecrated as the own and most holy temple of justice, and the whole law (totum jus) should be arranged in fifty books under specific titles.”[358]

The language of the ancient jurists was to be preserved even critically, that is to say, the compilers were directed to emend apparent errors and restore what seemed “verum et optimum et quasi ab initio scriptum.” It was not the least of the providential mercies connected with the compilation of this great body of jurisprudential law, that Justinian and his commission did not abandon the phrasing of the old jurisconsults, and restate their opinions in such language as we have a sample of in the constitution from which the above extract is taken. This jurisprudential part of Justinian’s Codification was named the Digest or Pandects.[359]

Inasmuch as Justinian’s brief reconquest of western portions of the Roman Empire did not extend north of the Alps, his codification was not promulgated in Gaul or Germany. Even in Italy his legislation did not maintain itself in general dominance, especially in the north where the Lombard law narrowed its application. Moreover, throughout the peninsula, the Pandects quickly became as if they were not, and fell into desuetude, if that can be said of a work which had not come into use. This body of jurisprudential law was beyond the legal sense of those monarchically-minded and barbarizing centuries, which knew law only as the command of a royal lawgiver. The Codex and the Novellae were of this nature. They, and not the Digest, represent the influence upon Italy of Justinian’s legislation until the renewed interest in jurisprudence brought the Pandects to the front at the close of the eleventh century. But Codex and Novellae were too bulky for a period that needed to have its intellectual labours made easy. From the first, the Novellae were chiefly known and used in the condensed form given them in the excellent Epitome of Julianus, apparently a Byzantine of the last part of Justinian’s reign.[360] The cutting down and epitomizing of the Codex is more obscure; probably it began at once; the incomplete or condensed forms were those in common use.[361]

It is, however, with the Theodosian Code and certain survivals of the works of the great jurists that we have immediately to do. For these were the sources of the codes enacted by Gothic and Burgundian kings for their Roman or Gallo-Roman subjects. Apparently the earliest of them was prepared soon after the year 502, at the command of Gondebaud, King of the Burgundians. This, which later was dubbed the Papianus,[362] was the work of a skilled Roman lawyer, and seems quite as much a text-book as a code. It set forth the law of the topics important for the Roman provincials living in the Burgundian kingdom, not merely making extracts from its sources, but stating their contents and referring to them as authorities. These sources were substantially the same as those used by the Visigothic Breviarium, which was soon to supersede the Papianus even in Burgundy.

Breviarium was the popular name of the code enacted by the Visigothic king Alaric II. about the year 506 for his provinciales in the south of Gaul.[363] It preserved the integrity of its sources, giving the texts in the same order, and with the same rubrics, as in the original. The principal source was the Theodosian Code; next in importance the collections of Novellae of Theodosius and succeeding emperors: a few texts were taken from the Codes of “Gregorianus” and “Hermogenianus.” These parts of the Breviarium consisted of leges, that is, of constitutions of the emperors. Two sources of quite a different character were also drawn upon. One was the Institutes of Gaius, or rather an old epitome which had been made from it. The other was the Sententiae of Paulus, the famous “Five Books of Sentences ad filium.” This work of elementary jurisprudence deserved its great repute; yet its use in the Breviarium may have been due to the special sanction which had been given it in one of the constitutions of the Theodosian Code, also taken over into the Breviarium: “Pauli quoque sententias semper valere praecipimus.”[364] The same constitution confirmed the Institutes of Gaius, among other great jurisconsults. Presumably these two works were the most commonly known as well as the clearest and best of elementary jurisprudential compositions.

An interesting feature of the Breviarium, and destined to be of great importance, was the Interpretatio accompanying all its texts, except those drawn from the epitome of Gaius. This was not the work of Alaric’s compilers, but probably represents the approved exposition of the leges, with the exposition of the already archaic Sentences of Paulus, current in the law schools of southern Gaul in the fifth century. The Interpretatio thus taken into the Breviarium had, like the texts, the force of royal law, and soon was to surpass them in practice by reason of its perspicuity and modernity. Many manuscripts contain only the Interpretatio and omit the texts.

The Breviarium became the source of Roman law, indeed the Roman law par excellence, for the Merovingian and then the Carolingian realm, outside of Italy. It was soon subjected to the epitomizing process, and its epitomes exist, dating from the eighth to the tenth century: they reduced it in bulk, and did away with the practical inconvenience of lex and interpretatio. Further, the Breviarium, and even the epitomes, were glossed with numerous marginal or interlinear notes made by transcribers or students. These range from definitions of words, sometimes taken from Isidore’s Etymologiae, to brief explanations of difficulties in the text.[365] In like manner in Italy, the Codex and Novellae of Justinian were, as has been said, reduced to epitomes, and also equipped with glosses.

These barbaric codes of Roman law mark the passage of Roman law into incipiently mediaeval stages. On the other hand, certain Latin codes of barbarian law present the laws of the Teutons touched with Roman conceptions, and likewise becoming inchoately mediaeval.

Freedom, the efficient freedom of the individual, belongs to civilization rather than to barbarism. The actual as well as imaginary perils surrounding the lives of men who do not dwell in a safe society, entail a state of close mutual dependence rather than of liberty. Law in a civilized community has the twofold purpose of preserving the freedom of the individual and of maintaining peace. With each advance in human progress, the latter purpose, at least in the field of private civil law, recedes a little farther, while the importance of private law, as compared with penal law, constantly increases.

The law of uncivilized peoples lacks the first of these purposes. Its sole conscious object is to maintain, or at least provide a method of maintaining peace; it is scarcely aware that in maintaining peace it is enhancing the freedom of every individual.

The distinct and conscious purpose of early Teutonic law was to promote peace within the tribe, or among the members of a warband. Thus was law regarded by the people--as a means of peace. Its communication or ordainment might be ascribed to a God or a divine King. But in reality its chief source lay in slowly growing regulative custom.[366] The force of law, or more technically speaking the legal sanction, lay in the power of the tribe to uphold its realized purpose as a tribe; for the power to maintain its solidarity and organization was the final test of its law-upholding strength.

Primarily the old Teutonic law looked to the tribe and its sub-units, and scarcely regarded the special claims of an individual, or noticed mitigating or aggravating elements in his culpability--answerability rather. It prescribed for his peace and protection as a member of a family, or as one included within the bands of Sippe (blood relationship); or as one of a warband or a chief’s close follower, one of his comitatus. On the other hand, the law was stiff, narrow, and ungeneralized in its recognized rules. The first Latin codifications of Teutonic law are not to be compared for breadth and elasticity of statement to the Law of the Twelve Tables. And their substance was more primitive.[367]

The earliest of these first codifications was the Lex Salica, codified under Clovis near the year 500. Unquestionably, contact with Roman institutions suggested the idea, even as the Latin language was the vehicle, of this code. Otherwise the Lex Salica is un-Christian and un-Roman, although probably it was put together after Clovis’s baptism. It was not a comprehensive codification, and omitted much that was common knowledge at the time; which now makes it somewhat enigmatical. One finds in it lists of thefts of every sort of object that might be stolen, and of the various injuries to the person that might be done, and the sum of money to be paid in each case as atonement or compensation. Such schedules did not set light store on life and property. On the contrary, they were earnestly intended as the most available protection of elemental human rights, and as the best method of peaceful redress. The sums awarded as Wergeld were large, and were reckoned according to the slain man’s rank. By committing a homicide, a man might ruin himself and even his blood relatives (Sippe) and of course on failure to atone might incur servitude or death or outlawry.

The Salic law is scarcely touched by the law of Rome. From this piece of intact Teutonism the codes of other Teuton peoples shade off into bodies of law partially Romanized, that is, affected by the provincialized Roman law current in the locality where the Teutonic tribe found a home. The codes of the Burgundians and the Visigoths in southern France are examples of this Teutonic-Romanesque commingling. On the other hand, the Lombard codes, though later in time, held themselves even harshly Teutonic, as opposed to any influence from the law of the conquered Italian population, for whom the Lombards had less regard than Burgundians and Visigoths had for their subject provincials. Moreover, as the Frankish realm extended its power over other Gallo-Teuton states, the various Teuton laws modified each other and tended toward uniformity. Naturally the law of the Franks, first the Salic and then the partly derivative Ribuarian code, exerted a dominating influence.[368]

These Teuton peoples regarded law as pertaining to the tribe. There was little conscious intention on their part of forcing their laws on the conquered. When the Visigoths established their kingdom in southern France they had no idea of changing the law of the Gallo-Roman provincials living within the Visigothic rule; and shortly afterwards, when the Franks extended their power over the still Roman parts of Gaul, and then over Alemanni, Burgundians, and Visigoths, they likewise had no thought of forcing their laws either upon Gallo-Romans or upon the Teuton people previously dominant within a given territory. This remained true even of the later Frankish period, when the Carolingians conquered the Lombard kingdom in upper Italy.

Indeed, to all these Teutons and to the Roman provincials as well, it seemed as a matter of course that tribal or local laws should be permitted to endure among the peoples they belonged to. These assumptions and the conditions of the growing Frankish Empire evoked, as it were, a more acute mobilization of the principle that to each people belonged its law. For provincials and Teuton peoples were mingling throughout the Frankish realm, and the first obvious solution of the legal problems arising was to hold that provincials and Teutons everywhere should remain amenable and entitled to their own law, which was assumed to attend them as a personal appurtenance. Of course this solution became intolerable as tribal blood and delimitations were obscured, and men moved about through the territories of one great realm. Archbishop Agobard of Lyons remarks that one might see five men sitting together, each amenable to a different law.[369] The escape from this legal confusion was to revert to the idea of law and custom as applying to every one within a given territory. The personal principle gradually gave way to this conception in the course of the ninth, tenth, and eleventh centuries.[370] In the meanwhile during the Merovingian, and more potently in the Carolingian period, king’s law, as distinguished from people’s law, had been an influence making for legal uniformity throughout that wide conglomerate empire which acknowledged the authority of the Frankish king or emperor. The king’s law might emanate from the delegated authority, and arise from the practices, of royal functionaries; it was most formally promulgated in Capitularies, which with Charlemagne reach such volume and importance. Some of these royal ordinances related to a town or district only. Others were for the realm, and the latter not only were instances of law applying universally, but also tended to promote, or suggest, the harmonizing of laws which they did not modify directly.

III

The Roman law always existed in the Middle Ages. Provincialized and changed, it was interwoven in the law and custom of the land of the langue d’oc and even in the customary law of the lands where the langue d’oil was spoken. Through the same territory it existed also in the Breviarium and its epitomes. There was very little of it in England, and scarcely a trace in the Germany east of the Rhine. In Italy it was applied when not superseded by the Lombard codes, and was drawn from works based on the Codex and Novels of Justinian. But the jurisprudential law contained in Justinian’s Digest was as well forgotten in Italy as in any land north of the Alps, where the Codification of Justinian had never been promulgated. The extent to which the classic forms of Roman law were known or unknown, unforgotten or forgotten, was no accident as of codices or other writings lost accidentally. It hung upon larger conditions--whether society had reached that stage of civilized exigency demanding the application of an advanced commercial law, and whether there were men capable of understanding and applying it. This need and the capacity to understand would be closely joined.[371]

The history of the knowledge and understanding of Roman law in the Middle Ages might be resolved into a consideration of the sources drawn upon, and the extent and manner of their use, from century to century. In the fifth century, when the Theodosian Code was promulgated, law was thought of chiefly as the mandate of a ruler. The Theodosian Code was composed of constitutiones principum. Likewise the Breviarium, based upon it, and other barbarian codes of Roman law, were ordained by kings; and so were the codes of Teutonic law. For law, men looked directly to the visible ruler. The jus, reasoned out by the wisdom of trained jurists, had lost authority and interest. To be sure, a hundred years later Justinian’s Commission put together in the Digest the body of jurisprudential law; but even in Italy where his codification was promulgated, the Digest fell still-born. Never was an official compilation of less effect upon its own time, or of such mighty import for times to come.

The Breviarium became par excellence the code of Roman law for the countries included in the present France. With its accompanying Interpretatio it was a work indicating intelligence on the part of its compilers, whose chief care was as to arrangement and explanation. But the time was not progressive, and a gathering mental decadence was shown by the manner in which the Breviarium was treated and used, to wit, epitomized in many epitomes, and practically superseded by them. Here was double evidence of decay; for the supersession of such a work by such epitomes indicates a diminishing legal knowledge in the epitomizers, and also a narrowing of social and commercial needs in the community, for which the original work contained much that was no longer useful.

There were, of course, epitomes and epitomes. Such a work as the Epitome Juliani, in which a good Byzantine lawyer of Justinian’s time presented the substance of the Novellae, was an excellent compendium, and deserved the fame it won. Of a lower order were the later manipulations of Justinian’s Codex, by which apparently the Codex was superseded in Italy. One of these was the Summa Perusina of the ninth or tenth century, a wretched work, and one of the blindest.[372]

Justinian’s Codex and Julian’s Epitome were equipped with glosses, some of which are as early as Justinian’s time; but the greater part are later. The glosses to Justinian’s legislation resemble those of the Breviarium before referred to. That is to say, as the centuries pass downward toward the tenth, the glosses answer to cruder needs: they become largely translations of words, often taken from Isidore’s Etymologiae.[373] Indeed many of them appear to have had merely a grammatical interest, as if the text was used as an aid in the study of the Latin language.

The last remark indicates a way in which a very superficial acquaintance with the Roman law was kept up through the centuries prior to the twelfth: it was commonly taught in the schools devoted to elementary instruction, that is to say, to the Seven Liberal Arts. In many instances the instructors had only such knowledge as they derived from Isidore, that friend of every man. That is, they had no special knowledge of law, but imparted various definitions to their pupils, just as they might teach them the names of diseases and remedies, a list of which (and nothing more) they would also find in Isidore. It was all just as one might have expected. Elementary mediaeval education was encyclopaedic in its childish way; and, in accordance with the methods and traditions of the transition centuries, all branches of instruction were apt to be turned to grammar and rhetoric, and made linguistic, so to speak--mere subjects for curious definition. Thus it happened to law as well as medicine. Yet some of the teachers may have had a practical acquaintance with legal matters, with an understanding for legal documents and skill to draw them up.

The assertion also is warranted that at certain centres of learning substantial legal instruction was given; one may even speak of schools of law. Scattered information touching all the early mediaeval periods shows that there was no time when instruction in Roman law could not be obtained somewhere in western Europe. To refer to France, the Roman law was very early taught at Narbonne; at Orleans it was taught from the time of Bishop Theodulphus, Charlemagne’s contemporary, and probably the teaching of it long continued. One may speak in the same way of Lyons; and in the eleventh century Angers was famed for the study of law.

Our information is less broken as to an Italy where through the early Middle Ages more general opportunities offered for elementary education, and where the Roman law, with Justinian’s Codification as a base, made in general the law of the land. There is no reason to suppose that it was not taught. Contemporary allusions bear witness to the existence of a school of law in Rome in the time of Cassiodorus and afterwards, which is confirmed by a statement of the jurist Odofredus in the thirteenth century. At Pavia there was a school of law in the time of Rothari, the legislating Lombard king; this reached the zenith of its repute in the eleventh century. Legal studies also flourished at Ravenna, and succumbed before the rising star of the Bologna school at the beginning of the twelfth century.[374] In these and doubtless many other cities[375] students were instructed in legal practices and formulae, and some substance of the Roman law was taught. Extant legal documents of various kinds afford, especially for Italy, ample evidence of the continuous application of the Roman law.[376]

As for the merits and deficiencies of legal instruction in Italy and in France, an idea may be gained from the various manuals that were prepared either for use in the schools of law or for the practitioner. Because of the uncertainty, however, of their age and provenance, it is difficult to connect them with a definite foyer of instruction.

Until the opening of the twelfth century, or at all events until the last quarter of the eleventh, the legal literature evinces scarcely any originality or critical capacity. There are glosses, epitomes, and collections of extracts, more or less condensed or confused from whatever text the compiler had before him. Little jurisprudential intelligence appears in any writings which are known to precede the close of the eleventh century; none, for instance, in the epitomes of the Breviarium and the glosses relating to that code; none in those works of Italian origin the material for which was drawn directly or indirectly from the Codex or Novels of Justinian, for instance the Summa Perusina and the Lex Romana canonice compta, both of which probably belong to the ninth century. Such compilations were put together for practical use, or perhaps as aids to teaching.

Thus, so far as inference may be drawn from the extant writings, the legal teaching in any school during this long period hardly rose above an uncritical and unenlightened explanation of Roman law somewhat mediaevalized and deflected from its classic form and substance. There was also practical instruction in current legal forms and customs. Interest in the law had not risen above practical needs, nor was capacity shown for anything above a mechanical handling of the matter. Legal study was on a level with the other intellectual phenomena of the period.

In an opusculum[377] written shortly after the middle of the eleventh century, Peter Damiani bears unequivocal, if somewhat hostile, witness to the study of law at Ravenna; and it is clear that in his time legal studies were progressing in both France and Italy. It is unsafe to speak more definitely, because of the difficulty in fixing the time and place of certain rather famous pieces of legal literature, which show a marked advance upon the productions to be ascribed with certainty to an earlier time. The reference is to the Petri exceptiones and the Brachylogus. The critical questions relating to the former are too complex even to outline here. Both its time and place are in dispute. The ascribed dates range from the third quarter of the eleventh century to the first quarter of the twelfth, a matter of importance, since the opening of the twelfth century is marked by the rise of the Bologna school. As for the place, some scholars still adhere to the south of France, while others look to Pavia or Ravenna. On the whole, the weight of argument seems to favour Italy and a date not far from 1075.[378]

The Petrus, as it is familiarly called, is drawn from immediately prior and still extant compilations. The compiler wished to give a compendious if not systematic presentation of law as accepted and approved in his time, that is to say, of Roman law somewhat mediaevalized in tone, and with certain extraneous elements from the Lombard codes. The ultimate Roman sources were the Codification of Justinian, and indeed all of it, Digest, Codex, and Novels, the last in the form to which they had been brought in Julian’s Epitome. The purpose of the compilation is given in the Prologue,[379] which in substance is as follows:

“Since for many divers reasons, on account of the great and manifold difficulties in the laws, even the Doctors of the laws cannot without pains reach a certain opinion, we, taking account of both laws, to wit, the jus civile and the jus naturale, unfold the solution of controversies under plain and patent heads. Whatever is found in the laws that is useless, void, or contrary to equity, we trample under our feet. Whatever has been added and surely held to, we set forth in its integral meaning so that nothing may appear unjust or provocative of appeal from thy judgments, Odilo;[380] but all may make for the vigour of justice and the praise of God.”

The arrangement of topics in the Petrus hardly evinces any clear design. The substance, however, is well presented. If there be a question to be solved, it is plainly stated, and the solution arrived at may be interesting. For example, a case seems to have arisen where the son of one who died intestate had seized the whole property to the exclusion of the children of two deceased daughters. The sons of one daughter acquiesced. The sons of the other per placitum et guerram forced their uncle to give up their share. Thereupon the supine cousins demanded to share in what had so been won. The former contestants resisted on the plea that the latter had borne no aid in the contest and that they had obtained only their own portion. The decision was that the supine cousins might claim their heritage from whoever held it, and should receive their share in what the successful contestants had won; but that the latter could by counter-actions compel them to pay their share of the necessary expenses of the prior contest.[381]

Sometimes the Petrus seems to draw a general rule of law from the apparent instances of its application in Justinian’s Codification. Therein certain formalities were prescribed in making a testament, in adopting a son, or emancipating a slave. The Petrus draws from them the general principle that where the law prescribes formalities, the transaction is not valid if they are omitted.[382] In fine, unsystematized as is the arrangement of topics, the work presents an advance in legal intelligence over mediaeval law-writings earlier than the middle of the eleventh century.

If the Petrus was adapted for use in practice, the Brachylogus, on the other hand, was plainly a book of elementary instruction, formed on the model of Justinian’s Institutes. But it made use of his entire codification, the Novels, however, only as condensed in Julian’s Epitome. The influence of the Breviarium is also noticeable; which might lead one to think that the treatise was written in Orleans or the neighbourhood, since the Breviarium was not in use in Italy, while the Codification of Justinian was known in France by the end of the eleventh century. The beginning of the twelfth is the date usually given to the Brachylogus. It does not belong to the Bologna school of glossators, but rather immediately precedes them, wherever it was composed.[383]

The Brachylogus, as a book of Institutes, compares favourably with its model, from the language of which it departed at will. Both works are divided into four libri; but the libri of the Brachylogus correspond better to the logical divisions of the law. Again, frequently the author of the Brachylogus breaks up the chapters of Justinian’s Institutes and gives the subject-matter under more pertinent headings. Sometimes the statements of the older work are improved by rearrangement. The definitions of the Brachylogus are pithy and concise, even to a fault. Often the exposition is well adapted to the purposes of an elementary text-book,[384] which was meant to be supplemented by oral instruction. On the whole, the work shows that the author is no longer encumbered by the mass or by the advanced character of his sources. He restates their substance intelligently, and thinks for himself. He is no compiler, and his work has reached the rank of a treatise.

The merits of the Brachylogus as an elementary text-book are surpassed by those of the so-called Summa Codicis Irnerii, a book which may mark the beginning of the Bologna school of law, and may even be the composition of its founder. Many arguments are adduced for this authorship.[385] The book has otherwise been deemed a production of the last days of the school of law at Rome just before the school was broken up by some catastrophe as to which there is little information. In that case the work would belong to the closing years of the eleventh century, whereas the authorship of Irnerius would bring it to the beginning of the twelfth. At all events, its lucid jurisprudential reasoning precludes the likelihood of an earlier origin.

This Summa is an exposition of Roman law, following the arrangement and titles of Justinian’s Codex, but making extensive use of the Digest. It thus contains Roman jurisprudential law, and may be regarded as a compendious text-book for law students, forming apparently the basis of a course of lectures which treated the topics more at length.[386] The author’s command of his material is admirable, and his presentation masterly. Whether he was Irnerius or some one else, he was a great teacher. His work may be also called academic, in that his standpoint is always that of the Justinianean law, although he limits his exposition to those topics which had living interest for the twelfth century. Private substantial law forms the chief matter, but procedure is set forth and penal law touched upon. The author appreciates the historical development of the Roman law and the character of its various sources--praetorian law, constitutiones principum, and responsa prudentium. He also shows independence, and a regard for legal reasoning and the demands of justice. While he sets forth the jus civile, his exposition and approval follow the dictates of the jus naturale.

“The established laws are to be understood benignly, so as to preserve their spirit, and prevent their departure from equity; for the Judge recognizes ordainments as legitimate when they conform to the principles of justice (ratio equitatis).... Interpretation is sometimes general and imperative, as when the lawgiver declares it: then it must be applied not only to the matter for which it is announced, but in all like cases. Sometimes an interpretation is imperative, but only for the special case, like the interpretation which is declared by those adjudicating a cause. It is then to be accepted in that cause, but not in like instances; for not by precedents, but by the laws are matters to be adjusted. There is another kind of interpretation which binds no one, that made by teachers explaining an ambiguous law, for although it may be admissible because sound, still it compels no one. For every interpretation should so be made as not to depart from justice, and that all absurdity may be avoided and no door opened to fraud.”[387]

One must suppose that such concise statements were explained and qualified in the author’s lectures. But even as they stand, they afford an exposition of Roman principles of interpretation. Not only under the Roman Empire, but subsequently in mediaeval times, the Roman lawyer or the canonist did not pay the deference to adjudicated precedent which is felt by the English or American judge. The passage in the Codex which “Irnerius” was expounding commands that the judge, in deciding a case, shall follow the laws and the reasoning of the great jurists, rather than the decision of a like controversy.

Since the author of this Summa weighs the justice, the reason, and the convenience of the laws, and compares them with each other, his book is a work of jurisprudence. Its qualities may be observed in its discussion of possession and the rights arising therefrom. The writer has just been expounding the usucapio, an institution of the jus civile strictly speaking, whereby the law of Rome in certain instances protected and, after three years, perfected, the title to property which one had in good faith acquired from a vendor who was not the owner:

“Now we must discuss the ratio possessionis. Usucapio in the jus civile hinges on possession, and ownership by the jus naturale may take its origin in possession. There are many differences in the ways of acquiring possession, which must be considered. And since in the constitutiones and responsa prudentium divers reasons are adduced regarding possession, my associates have begged that I would expound this important and obscure subject in which is mingled the ratio both of the civil and the natural law. So I will do my best. First one must consider what possession is, how it is acquired, maintained, or lost. Possession (here the author follows Paulus and Labeo in the Digest) is as when one’s feet are set upon a thing, when body naturally rests on body. To acquire possession is to begin to possess. Herein one considers both the fact and the right. The fact arises through ourselves or our representative. It is understood differently as to movables and as to land; for the movable we take in our hand, but we take possession of a farm by going upon it with this intent and laying hold of a sod. The intent to possess is crucial. Thus a ring put in the hand of a sleeper is not possessed for lack of intent on his part. You possess naturally when with mind and body (yours or another’s who represents you) you hold or sit upon with intent to possess. Corporeal things you properly possess, and acquire possession of, by your own or your agent’s hand. In the same manner you retain. Incorporeal things cannot be possessed properly speaking, but the civil law accords a quasi possession of them.”

Then follows a discussion of the persons through whom another may have possession, and of the various modes of possessing longa manu without actual touch:

“It is one thing when the possession begins with you, and another when it is transferred to you by a prior possessor: for possession begins in three ways, by occupation, accession, and transfer. You occupy the thing that belongs to no one. By accession you acquire possession in two ways. Thus the increment may be possessed, as the fruit of thy handmaid; or the accession consists in the union with a larger thing which is yours, as when alluvium is deposited on your land. Again possession is transferred to you,”

voluntarily or otherwise. He now discusses the various modes in which possession is acquired by transfer, then the nature of the justa or injusta causa with which possession may begin, and the effect on the rights of the possessor, and then some matters more peculiar to the time of Justinian. After which he passes to the loss of possession, and concludes with saying that he has endeavoured to go over the whole subject, and whatever is omitted or insufficiently treated, he begs that it be laid to the fault of humanae imbecillitatis. The discussion reads like a carefully drawn outline which his lecture should expand.[388]

The knowledge and understanding of the Roman law in the mediaeval centuries should be viewed in conjunction with the general progress of intellectual aptitude during the same periods. The growth of legal knowledge will then show itself as a part of mediaeval development, as one phase of the flowering of the mediaeval intellect. For the treatment of Roman law presents stages essentially analogous to those by which the Middle Ages reached their understanding and appropriation of other portions of their great inheritance from classical antiquity and the Christianity of the Fathers. Let us recapitulate: the Roman law, adapted, or corrupted if one will, epitomized and known chiefly in its later enacted forms, was never unapplied nor the study of it quite abandoned. It constituted a great part of the law of Italy and southern France; in these two regions likewise was its study least neglected. We have observed the superficial and mainly linguistic nature of the glosses which this early mediaeval period interlined or wrote on the margins of the source-books drawn upon, also the rude and barbarous nature of the earlier summaries and compilations. They were helps to a crude practical knowledge of the law. Gradually the treatment seems to become more intelligent, a little nearer the level of the matter excerpted or made use of. Through the eleventh century it is evident that social conditions were demanding and also facilitating an increase in legal knowledge; and at that century’s close a by no means stupid compilation appears, the Petri exceptiones, and perhaps such a fairly intelligent manual for elementary instruction as the Brachylogus. These works indicate that the instruction in the law was improving. We have also the sparse references to schools of law, at Rome, at Ravenna, at Orleans. Then we come upon the Summa Codicis called of Irnerius, of uncertain provenance, like the Petrus and Brachylogus. But there is no need to be informed specifically of its place and date in order to recognize its advance in legal intelligence, in veritable jurisprudence. The writer was a master of the law, an adept in its exposition, and his oral teaching must have been of a high order. With this book we have unquestionably touched the level of the strong beginnings of the greatest of mediaeval schools of Roman law.

Its seat was Bologna, one of the chief centres of the civic and commercial life of Lombardy. The Lombards themselves had shown a persistent legal genius: their own Teutonic codes, enacted in Italy, had maintained themselves in that land of Roman law and custom. Lombard codification had almost reached a jurisprudence of its own, at Pavia, the juridical centre of Lombardy. The provisions of various codes had been compared and put together in a sort of Concordia, as early as the ninth century.[389] Possibly the rivalry of Lombard law might stimulate those learned in the law of Rome to sharper efforts to expound it and prove its superiority. Moreover, all sides of civic life and culture were flourishing in that region where novel commercial relations were calling for a corresponding progress in the law, and especially for a better knowledge of the Roman law which alone afforded provision for their regulation.

As some long course of human development approaches its climax, the advance apparently becomes so rapid as to give the impression of something suddenly happening, a sudden leap upward of the human spirit. The velocity of the movement seems to quicken as the summit is neared. One easily finds examples, for instance the fifth century before Christ in Greek art, or the fourth century in Greek philosophy, or again the excellence so quickly reached apparently by the Middle High German poetry just about the year 1200. But may not the seeming suddenness of the phenomenon be due to lack of information as to antecedents? and the flare of the final achievement even darken what went before? Yet, in fact, as a movement nears its climax, it may become more rapid. For, as the promoting energies and favouring conditions meet in conjunction, their joint action becomes more effective. Forces free themselves from cumbrances and draw aid from one another. Thus when the gradual growth of intellectual faculty effects a conjunction with circumstances which offer a fair field, and the prizes of life as a reward, a rapid increase of power may evince itself in novel and timely productivity.

This may suggest the manner of the apparently sudden rise of the Bologna school of Roman law, which, be it noted, took place but a little before the time of Gratian’s achievement in the Canon law, itself contemporaneous with the appearance of Peter Lombard’s novel Books of Sentences.[390] The preparation, although obscure, existed; and the school after its commencement passed onward through stages of development, to its best accomplishment, and then into a condition of stasis, if not decline. Irnerius apparently was its first master; and of his life little is known. He was a native of Bologna. His name as causidicus is attached to a State paper of the year 1113. Thereafter he appears in the service of the German emperor Henry V. We have no sure trace of him after 1118, though there is no reason to suppose that he did not live and labour for some further years. He had taught the Arts at Ravenna and Bologna before teaching, or perhaps seriously studying, the law. But his career as a teacher of the law doubtless began before the year 1113, when he is first met with as a man of affairs. Accounts agree in ascribing to him the foundation of the school.

Unless the Summa Codicis already mentioned, and a book of Quaestiones, be really his, his glosses upon Justinian’s Digest, Codex, and Novels, are all we have of him;[391] of the rest we know by report. The glosses themselves indicate that this jurist had been a grammarian, and used the learning of his former profession in his exposition of the law. His interlinear glosses are explanations of words, and would seem to represent his earlier, more tentative, work when he was himself learning the meaning of the law. But the marginal glosses are short expositions of the passages to which they are attached, and perhaps belong to the time of his fuller command over the legal material. They indicate, besides, a critical consideration of the text, and even of the original connection which the passage in the Digest held in the work of the jurisconsult from which it had been taken. Some of them show an understanding of the chronological sequence of the sources of the Roman law, e.g. that the law-making power had existed in the people and then passed to the emperors. These glosses of Irnerius represent a clear advance in jurisprudence over any previous legal comment subsequent to the Interpretatio attached to the Breviarium. It was also part of his plan to equip his manuscripts of the Codex with extracts taken from the text of the Novels, and not from the Epitome of Julian. He appears also as a lawyer versed in the practice of the law. For he wrote a book of forms for notaries and a treatise on procedure, neither of which is extant.[392]

The accomplishment of the Bologna school may be judged more fully from the works, still extant, of some of its chief representatives in the generations following Irnerius. A worthy one was Placentinus, a native of Piacenza. The year of his birth is unknown, but he died in 1192, after a presumably full span of life, passed chiefly as a student and teacher of the law. He taught in Mantua and Montpellier, as well as in Bologna. He was an accomplished jurist and a lover of the classic literature. His work entitled De varietate actionum was apparently the first attempt to set forth the Roman law in an arrangement and form that did not follow the sources.[393] He opens his treatise with an allegory of a noble dame, hight Jurisprudentia, within the circle of whose sweet and honied utterances many eager youths were thronging. Placentinus drew near, and received from her the book which he now gives to others.[394] This little allegory savours of the De consolatione of Boëthius, or, if one will, of Capella’s De nuptiis Philologiae.

The most admirable surviving work of Placentinus is his Summa of the Codex of Justinian. His autobiographical proemium shows him not lacking in self-esteem, and tells why he undertook the work. He had thought at first to complete the Summa of Rogerius, an older glossator, but then decided to put that book to sleep, and compose a full Summa of the Codex himself, from the beginning to the end. This by the favour of God he has done; it is the work of his own hands, from head to heel, and all the matter is his own--not borrowed. Next he wrote for beginners a Summa of the Institutes. After which he returned to his own town, and shortly proceeded thence to Bologna, whither he had been called. “There in the citadel (in castello) for two years I expounded the laws to students; I brought the other teachers to the threshold of envy; I emptied their benches of students. The hidden places of the law I laid open, I reconciled the conflicts of enactments, I unlocked the secrets most potently.” His success was great, and he was besought to continue his course of lectures. He complied, and remained two years more, and then returned to Montpellier, in order to compose a Summa of the Digest.[395] If indeed Placentinus speaks bombastically of his work, its excellence excuses him. His well-earned reputation as a jurist and scholar long endured.

Quaestiones, Distinctiones, Libri disputationum, Summae of the Codex or the Institutions, and other legal writings, are extant in goodly bulk and number from the Bologna school. The names of the men are almost legion, and many were of great repute in their day both as jurists and as men of affairs. We may mention Azo and Accursius, of a little later time. Azo’s name appears in public documents from the year 1190 to 1220--and he may have survived the latter date by some years. His works were of such compass and excellence as to supersede those of his predecessors. His glosses still survive, and his Lectura on the Codex, his Summae of the Codex and the Institutes, and his Quaestiones, and Brocarda, the last a sort of work stating general legal propositions and those contradicting them. Azo’s glosses were so complete as to constitute a continuous exposition of the entire legislation of Justinian. His Summae of the Codex and Institutes drove those of Placentinus out of use, which we note with a smile.[396]

None of the glossators is better known than Accursius. He comes before us as a Florentine, and apparently a peasant’s son. He died an old man rich and famous, about the year 1260. Azo was his teacher. In 1252 he was Podesta of Bologna, which indicates the respect in which men held him. Villani, the Florentine historian, describes him as of martial form, grave, thoughtful, even melancholy in aspect, as if always meditating; a man of brilliant talents and extraordinary memory, sober and chaste in life, but delighting in noble vesture. His hearers drank in the laws of living from his mien and manners no less than from the dissertations of his mouth.[397] Late in life he retired to his villa, and there in quiet worked on his great Glossa till he died.

This famous, perhaps all too famous, Glossa ordinaria was a digest and, as it proved, a final one, of the glosses of his predecessors and contemporaries. He drew not only from their glosses, but also on their Summae and other writings. He added a good deal of his own. Great as was the feat, the somewhat deadened talent of a compiler shows in the result, which flattened out the individual labours of so many jurists. It came at once into general use in the courts and outside of them; for it was a complete commentary on the Justinianean law, so compendious and convenient that there was no further need of the glosses of earlier men. This book marked the turning-point of the Bologna school, after which its productivity lessened. Its work was done: Codex, Novels, and above all the Pandects were rescued from oblivion, and fully expounded, so far as the matter in them was still of interest. When the labours of the school had been conveniently heaped together in one huge Glossa, there was no vital inducement to do this work again. The school of the glossators was functus officio. Naturally with the lessening of the call, productivity diminished. Little was left to do save to gloss the glosses, an epigonic labour which would not attract men of talent. Moreover, treating the older glosses, instead of the original text, as the matter to be interpreted was unfavourable to progress in the understanding of the latter.

Yet, for a little, the breath of life was still to stir in the school of the glossators. There was a man of fame, a humanist indeed, named Cino, whose beautiful tomb still draws the lover of things lovely to Pistoia. Cino was also a jurist, and it came to him to be the teacher of one whose name is second to none among the legists of the Middle Ages. This was Bartolus, born probably in the year 1314 at Sassoferrato in the duchy of Urbino. He was a scholar, learned in geometry and Hebrew, also a man of affairs. He taught the law at Pisa and Perugia, and in the last-named town he died in 1357, not yet forty-four years old. Bartolus wrote and compiled full commentaries on the entire Corpus juris civilis; and yet he produced no work differing in kind from works of his predecessors. Moreover, between him and the body of the law rose the great mass of gloss and comment already in existence, through which he did not always penetrate to the veritable Corpus. Yet his labours were inspired with the energy of a vigorous nature, and he put fresh thoughts into his commentaries.[398]

The school of glossators presented the full Roman law to Europe. The careful and critical interpretation of the text of Justinian’s Codification, of the Digest above all, was their great service. In performing it, these jurists also had educated themselves and developed their own intelligence. They had also put together in Summae the results of their own education in the law. These works facilitated legal study and sharpened the faculties of students and professors. Books of Quaestiones, legal disputations, works upon legal process and formulae, served the same ends.[399] These men were deficient in historical knowledge. Yet they compared Digest, Codex, and Novels; they tried to re-establish the purity of the text; they weighed and they expounded. Theirs was an intellectual effort to master the jurisprudence of Rome: their labours constituted a renaissance of jurisprudence; and the fact that they were often men of affairs as well as professors, kept them from ignoring the practical bearings of the matters which they taught.

The work of the glossators may be compared with that of the theologian philosophers of the thirteenth century--Alexander of Hales, Albertus Magnus, Thomas Aquinas--who were winning for the world a new and comprehensive knowledge of Aristotle. Both jurists and philosophers, in their different spheres, carried through a more profound study, and reached a more comprehensive knowledge, of a great store of antique thought, than previous mediaeval centuries conceived of. Moreover, the interpretation of the Corpus juris was quite as successful as the interpretation of Aristotle. It was in fact surer, because freer from the deflections of religious motive. No consideration of agreement or disagreement with Scripture troubled the glossators’ interpretation of the Digest, though indeed they may have been interested in finding support for whatever political views they held upon the claims of emperor and pope. But this did not disturb them as much as Aristotle’s opinion that the universe was eternal, worried Albertus and Aquinas.

The Church, from the time of its first recognition by the Roman Empire, lived under the Roman law;[400] and the constitutions safeguarding its authority were large and ample before the Empire fell. Constantine, to be sure, never dreamed of the famous “Donation of Constantine” forged by a later time, yet his enactments fairly launched the great mediaeval Catholic Church upon the career which was to bring it more domination than was granted in this pseudo-charter of its power. A number of Constantine’s enactments were preserved by the Theodosian Code, in which the powers and privileges of Church and clergy were portentously set forth.

The Theodosian Code freed the property of the Church from most fiscal burdens, and the clergy from taxes, from public and military service, and from many other obligations which sometimes the Code groups under the head of sordida munera. The Church might receive all manner of bequests, and it inherited the property of such of its clergy as did not leave near relatives surviving them. Its property generally was inalienable; and the clergy were accorded many special safeguards. Slaves might be manumitted in a church. The church edifices were declared asylums of refuge from pursuers, a privilege which had passed to the churches from the heathen fanes and the statues of the emperors. Constitution after constitution was hurled against the Church’s enemies. The Theodosian Code has one chapter containing sixty-six constitutions directed against heretics, the combined result of which was to deprive them, if not of life and property, at least of protected legal existence.

Of enormous import was the sweeping recognition on the Empire’s part of the validity of episcopal jurisdiction. No bishop might be summoned before a secular court as a defendant, or compelled to give testimony. Falsely to accuse one of the clergy rendered the accuser infamous. All matters pertaining to religion and church discipline might be brought only before the bishop’s court, which likewise had plenary jurisdiction over controversies among the clergy. It was also open to the laity for the settlement of civil disputes. The command not to go to law before the heathen came down from Paul (1 Cor. vi.), and together with the severed and persecuted condition of the early Christian communities, may be regarded as the far source of the episcopal jurisdiction, which thus divinely sanctioned tended to extend its arbitrament to all manner of legal controversies.[401] To be sure, under the Christian Roman Empire the authority of the Church as well as its privileges rested upon imperial law. Yet the emperors recognized, rather than actually created, the ecclesiastical authority. And when the Empire was shattered, there stood the Church erect amid the downfall of the imperial government, and capable of supporting itself in the new Teutonic kingdoms.

The constitutions of Christian emperors did not from their own force and validity become Ecclesiastical or Canon law--the law relating to Christians as such, and especially to the Church and its functions. The source of that law was God; the Church was its declarative organ. Acceptance on the Church’s part was requisite before any secular law could become a law of the Church.

Canon law may be taken to include theology, or may be limited to the law of the organization and functions of the Church taken in a large sense as inclusive of the laity in their relations to the religion of Christ.[402] Obviously part comes from Christ directly, through the Old Testament as well as New. The other part, and in bulk far greater, emanates from His foundation, the Church, under the guidance of His Spirit, and may be added to and modified by the Church from age to age. It is expressed in custom, universal and established, and it is found in written form in the works of the Fathers, in the decrees of Councils, in the decretals of the popes, and in the concordats and conventions with secular sovereignties. From the beginning, canon law tacitly or expressly adopted the constitutions of the Christian emperors relating to the Church, as well as the Roman law generally, under which the Church lived in its civil relations.

The Church arose within the Roman Empire, and who shall say that its wonderfully efficient and complete organization at the close of the patristic period was not the final creation of the legal and constructive genius of Rome, newly inspired by the spirit of Christianity? But the centre of interest had been transferred from earth to heaven, and human aims had been recast by the Gospel and the understanding of it reached by Christian doctors. Evidently since the ideals of the Church were to be other than those of the Roman Empire, the law which it accepted or evolved would have ideals different from those of the Roman law. If the great Roman jurists created a legal formulation and rendering of justice adequate for the highly developed social and commercial needs of Roman citizens, the law of the Church, while it might borrow phrases, rules, and even general principles, from that system, could not fail to put new meaning in them. For example, the constant will to render each his due, which was justitia in the Roman law, might involve different considerations where the soul’s salvation, and not the just allotment of the goods of this world, was the law’s chief aim. Again, what new meaning might attach to the honeste vivere and the alterum non laedere of pagan legal ethics. Honeste vivere might mean to do no sin imperilling the soul; alterum non laedere would acquire the meaning of doing nothing to another which might impede his progress toward salvation. Injuries to a man in his temporalities were less important.

Further, Christianity although conceived as a religion for all mankind, was founded on a definite code and revelation. The primary statement was contained in the canonical books of the Old and New Testaments. These were for all men, universal in application and of irrefragable validity and truth. Here was some correspondence to the conception of the jus gentium as representative of universal principles of justice and expediency, and therefore as equivalent to the jus naturale. There was something of logical necessity in the transference of this conception to the law of Christ. Says Gratian at the beginning of his Decretum: “It is jus naturae which is contained in the Law and the Gospel, by which every one is commanded to do to another as he would be done by, and forbidden to inflict on him what he does not wish to happen to himself.” Since the Law and the Gospel represent the final law of life for all men, they are par excellence the jus naturae, as well as lex divina. Gratian quotes from Augustine: “Divinum jus in scripturis divinis habemus, humanum in legibus regum.”[403] And then adds: “By its authority the jus naturale prevails over custom and constitution. Whatever in customs or writings is contrary to the jus naturale is to be held vain and invalid.” Again he says more explicitly: “Since therefore nothing is commanded by natural law other than what God wills to be, and nothing is forbidden except what God prohibits, and since nothing may be found in the canonical Scripture except what is in the divine laws, the laws will rest divinely in nature (divine leges natura consistent). It is evident, that whatever is proved to be contrary to the divine will or canonical Scripture, is likewise opposed to natural law. Wherefore whatever should give way before divine will or Scripture or the divine laws, over that ought the jus naturale to prevail. Therefore whatever ecclesiastical or secular constitutions are contrary to natural law are to be shut out.”[404]

The canon law is a vast sea. Its growth, its age-long agglomerate accretion, the systematization of its huge contents, have long been subjects for controversialists and scholars. Its sources were as multifarious as those of the Roman law. First the Scriptures and the early quasi-apostolic and pseudo-apostolic writings; then the traditions of primitive Christianity and also the writings of the Fathers; likewise ecclesiastical customs, long accepted and legitimate, and finally the two great written sources, the decretals or decisions of the popes and the decrees of councils. From patristic times collections were made of the last. These collections from a chronological gradually acquired a topical and more systemic arrangement, which the compilers followed more completely after the opening of the tenth century. The decisions of the popes also had been collected, and then were joined to conciliar compilations and arranged after the same topical plan.

In all of them there was unauthentic matter, accepted as if its pseudo-authorship or pseudo-source were genuine. But in the stormy times of the ninth century following the death of Charlemagne, the method of argument through forged authority was exceptionally creative. It produced two masterpieces which won universal acceptance. The first was a collection of false Capitularies ascribed to Charlemagne and Louis the Pious, and ostensibly the work of a certain Benedictus Levita, deacon of the Church of Mainz, who worked in the middle of the century. Far more famous and important was the book of False Decretals, put together and largely written, that is forged, about the same time, probably in the diocese of Rheims, and appearing as the work of Saint Isidore of Seville. This contained many forged letters of the early popes and other forged matter, including the Epistle or “Donation” of Constantine; also genuine papal letters and conciliar decrees. These false collections were accepted by councils and popes, and formed part of subsequent compilations.

From the tenth century onward many such compilations were made, all of them uncritical as to the genuineness of the matter taken, and frequently ill-arranged and discordant. They were destined to be superseded by the great work in which appears the better methods and more highly trained intelligence developing at the Bologna School in the first part of the twelfth century. Its author was Gratianus, a monk of the monastery of St. Felix at Bologna. He was a younger contemporary of Irnerius and of Peter Lombard. Legend made him the latter’s brother, with some propriety; for the compiler of those epoch-making Sentences represents the same stage in the appropriation of the patristic theological heritage of the Middle Ages, that Gratian represents in the handling of the canon law. The Lombard’s Sentences made a systematic and even harmonizing presentation of the theology of the Fathers in their own language; and the equally immortal Decretum of Gratian accomplished a like work for the canon law. This is the name by which his work is known, but not the name he gave it. That appears to have been Concordia discordantium canonum, which indicates his methodical presentation of his matter and his endeavour to reconcile conflicting propositions.

The first part of the Decretum was entitled “De jure naturae et constitutionis.” It presents the sources of the law, the Church’s organization and administration, the ordination and ranking of the clergy, the election and consecration of bishops, the authority of legates and primates. The second part treats of the procedure of ecclesiastical courts, also the law regulating the property of the Church, the law of monks and the contract of marriage. The third part is devoted to the Sacraments and the Liturgy.

Gratian’s usual method is as follows: He will open with an authoritative proposition. If he finds it universally accepted, it stands as valid. But if there are opposing statements, he tries to reconcile them, either pointing out the difference in date (for the law of the Church may be progressive), or showing that one of the discordant rules had but local or otherwise limited application, or that the first proposition is the rule, while the others make the exceptions. If he still fails to establish concord, he searches to find which rule had been followed in the Roman Church, and accepts that as authoritative. A rule being thus made certain, he proceeds with subdivisions and distinctions, treating them as deductions from the main rule and adjusting the supporting texts. Or he will suppose a controversy (causa) and discuss its main and secondary issues. Throughout he accompanies his authoritative matter with his own commentary--commonly cited as the Dicta Gratiani.[405] The Decretum was characterized by sagacity of interpretation and reconcilement, by vast learning, and clear ordering of the matter. Only it was uncritical as to the genuineness of its materials; and a number of Gratian’s own statements were subsequently disapproved in papal decretals. The Dicta Gratiani never received such formal sanction by pope or council as the writings of Roman jurists received by being taken into Justinian’s Digest.

The papal decretals had become the great source of canonical law. Gratian’s work was soon supplemented by various compilations known as Appendices ad Decretum or Decretales extravagantes, to wit, those which the Decretum did not contain. These, however, were superseded by the collection, or rather codification, made at the command of the great canonist Gregory IX. and completed in the year 1234. This authoritative work preserved Gratian’s Decretum intact, but suppressed, or abridged and reordered, the decretals contained in subsequent collections. Arranged in five books, it forms the second part of the Corpus juris canonici. In 1298 Boniface VIII. promulgated a supplementary book known as the Sextus of Boniface. This with a new collection promulgated under the authority of Clement V. in 1313, called the Clementinae, and the Extravagantes of his successor John XXII. and certain other popes, constitute the last portions of the Corpus juris canonici.[406]

According to the law of the Empire the emperor’s authority extended over the Church, its doctrine, its discipline, and its property. Such authority was exercised by the emperors from Constantine to Justinian. But the Church had always stood upon the principle that it was better to obey God rather than man. This had been maintained against the power of the pagan Empire, and was not to be sunned out of existence by imperial favour. It was still better to obey God rather than the emperor. The Church still should say who were its members and entitled to participate in the salvation which it mediated. Ecclesiastical authorities could excommunicate; that was their engine of coercion. These principles were incarnate in Ambrose, Bishop of Milan, withstanding and prohibiting Theodosius from Christian fellowship until he had done penance for the massacre at Thessalonica. Of necessity they inhered in the Church; they were of the essence of its strength to fulfil its purpose; they stood for the duly constituted power of Christian resolution to uphold and advance the peremptory truth of Christ.

So such principles persisted through the time of the hostile and then the favouring Roman Empire. And when the Empire in fact crumbled and fell, what de facto and de jure authority was best fitted to take the place of the imperial supremacy? The Empire represented a universal secular dominion; the Church was also universal, and with a universality now reaching out beyond the Empire’s shrinking boundaries. In the midst of political fragments otherwise disjoined, the Church endured as the universal unity. The power of each Teutonic king was great in fact and law within his realm. Yet he was but a local potency, while the Church existed through his and other realms. And when the power of one Teutonic line (the Carolingian) reached something like universal sway, the Church was also there within and without. It held the learning of the time, and the culture which large-minded seculars respected; and quite as much as the empire of Charlemagne, it held the prestige of Rome. Witness the attitude of Charles Martel and Pippin toward Boniface the great apostle, and the attitude of Boniface toward the Gregories whose legate he proclaimed himself, and upon whose central authority he based his claims to be obeyed. Through the reforms of the Frankish Church, carried out by him with the support of Charles Martel and Pippin, the ecclesiastical supremacy of Rome was established. Charlemagne, indeed, from the nature and necessities of his own transcendent power, possessed in fact the ecclesiastical authority of the Roman emperors, whom men deemed his predecessors. But after him the secular power fell again into fragments scarcely locally efficient, while the Church’s universality of authority endured.

In the unstable fragmentation of secular rule in the ninth century, the Isidorean Decretals presented the truth of the situation as it was to be, although not as it had been in the times of the Church dignitaries whose names were forged for that collection. And thereafter, as the Church recovered from its tenth-century disintegration, it advanced to the pragmatic demonstration of the validity of those false Decretals, on through the tempests of the age of Hildebrand to the final triumph of Innocent III. at the opening of the thirteenth century. Evidently the canon law, whatever might be its immediate or remote source, drew its authority from the sanction of the Roman Catholic Church, which enunciated it and made it into a body corresponding to the Church’s functions. It was what the Church promulgated as the law of the ecclesiastical hierarchy and the kingdom of God on earth. It should be the temporal and legal counterpart of the Church’s spiritual purposes. Its general tendency and purpose was the promotion of the Church’s saving aim, which regarded all things in the light of their relationship to life eternal. Therefore the Church’s law could not but define and consider all worldly interests, all personal and property rights and secular authority, with constant regard to men’s need of salvation. The advancement of that must be the final appellate standard of legal right.

Such was the event. The entire canon law might be lodged within those propositions which Hildebrand enunciated and Innocent III. realized. For the salvation of souls, all authority on earth had been entrusted by Christ to Peter and his successors. Theirs was the spiritual sword; secular power, the sword material, was to be exercised under the pope’s mandate and permission. No king or emperor, no layman whatsoever, was exempt from the supreme authority of the pope, who also was the absolute head of the Church, which had become a monarchy. “The Lord entrusted to Peter not only the universal Church, but the government of the whole world,” writes Innocent III., whose pontificate almost made this principle a fact. In private matters no member of the clergy could be brought before a secular court; and the jurisdiction of the ecclesiastical courts over the laity threatened to reduce the secular jurisdiction to narrow functions.[407] The property of the Church might not be taxed or levied on by any temporal ruler or government; nor could the Church’s functions and authority be controlled or limited by any secular decree. Universally throughout every kingdom the Church was a sovereignty, not only in matters spiritual, but with respect to all the personal and material relationships that might be connected in any way with the welfare of souls.[408]

The exposition of the Corpus juris civilis in the school of the glossators was of great moment in the evolution of mediaeval political theory, which in its turn yields one more example of the mediaeval application of thoughts derived from antique and patristic sources. Political thinking in the Middle Ages sought its surest foundation in theology; then it built itself up with concepts drawn from the philosophy and social theory of the antique world; and lastly it laid hold on jurisprudence, using the substance and reasoning of the Roman and the Canon law.

Mediaeval ideas upon government and the relations between the individual and his earthly sovereign, started from theological premises, of patristic origin: e.g. that the universe and man were made by God, a miraculous creation, springing from no other cause, and subject to no other fundamental law, than God’s unsearchable will, which never ceases to direct the whole creation to the Creator’s ends. A further premise was the Scriptural revelation of God’s purpose as to man, with all the contents of that revelation touching the overweening importance of man’s deathless soul.

Unity--the unity of the creation--springs from these premises, or is one of them. The principle of this unity is God’s will. Within the universal whole, mankind also constitutes a unit, a community, specially ordained and ordered. The Middle Ages, following the example of the patristic time, were delivered over to allegory, and to an unbridled recognition of the deductions of allegorical reasoning. Mankind was a community. Mankind was also an organism, the mystical body whereof the head was Christ. Here was an allegory potent for foolishness or wisdom. It was used to symbolize the mystery of the oneness of all mankind in God, and the organic co-ordination of all sorts and conditions of men with one another in the divine commonwealth on earth; it was also drawn out into every detail of banal anthropomorphic comparison. From John of Salisbury to Nicholas Cusanus, Occam and Dante, no point of fancied analogy between the parts and members of the body and the various functions of Church and State was left unexploited.[409]

Mankind then is one community; also an organism. But within the human organism abides the duality of soul and body; and the Community of Mankind on earth is constituted of two orders, the spiritual and temporal, Church and State.[410] There must be either co-ordination between State and Church, body and soul, or subordination of the temporal and material to the eternal and spiritual. To evoke an adjustment of what was felt to be an actually universal opposition, was the chief problem of mediaeval polity, and forms the warp and woof of conflicting theories. The Church asserted a full spiritual supremacy even in things temporal, and, to support the claim, brought sound arguments as well as foolish allegory--allegory pretending to be horror-stricken at the vision of an animal with two heads, a bicephalic monstrosity. But does not the Church comprise all mankind? Did not God found it? Is not Christ its head, and under Him his vicegerent Peter and all the popes? Then shall not the pope who commands the greater, which is the spiritual, much more command the less, the temporal? And all the argumentation of the two swords, delivered to Peter, comes into play. That there are two swords is but a propriety of administration. Secular rulers wield the secular sword at the pope’s command. They are instruments of the Church. Fundamentally the State is an ecclesiastical institution, and the bounds of secular law are set by the law spiritual: the canon law overrides the laws of every State. True, in this division, the State also is ordained of God, but only as subordinate. And divinely ordained though it be, the origin of the State lies in sin; for sin alone made government and law needful for man.[411]

On the other hand, the partisans of the State upheld co-ordination as the true principle.[412] The two swords represent distinct powers, Sacerdotium and Imperium. The latter as well as the former is from God; and the two are co-ordinates, although of course the Church which wields the spiritual sword is the higher. This theory creates no bicephalic monster. God is the universal head. And even as man is body as well as soul, the human community is State as well as Church; and the State needs the emperor for its head, as the Church has the pope. The Roman Dominion, imperium mundi, was legitimate, and by divine appointment has passed over to the Roman-German emperor. Other views sustaining the scheme of co-ordination upheld a plurality of states, rather than one universal Imperium. Of course these opposing views of subordination or co-ordination of State and Church took on every shade of diversity.

As to both Church and State, mediaeval political theory was predominantly monarchical. Ideally this flowed from the thought of God as the true monarch of the universe. Practically it comported with mediaeval social conditions. Under Innocent III., if not under Gregory VII., the Church had become a monarchy well-nigh absolute.[413] The pope’s power continued plenary until the great schism and the age of councils evoked by it. For the secular state, the common voice likewise favoured monarchy. The unity of the social organism is best effected by the singleness of its head. Thomas Aquinas authoritatively reasons thus, and Dante maintains that as the unifying principle is Will, the will of one man is the best means to realize it.[414] But monarchy is no absolute right existing for the ruler’s benefit, rather it is an office to be righteously exercised for the good of the community. The monarch’s power is limited, and if his command outrages law or right, it is a nullity; his subjects need not obey, and the principle applies, that it is better to obey God than man. Even when, as in the days of the Hohenstaufen, the civil jurists claimed for the emperor the plenitudo potestatis of a Roman Caesar, the opposite doctrine held strong, which gave him only a limited power, in its nature conditioned on its rightful exercise.

Moreover, rights of the community were not unrecognized, and indeed were supported by elaborate theories as the Middle Ages advanced to their climacteric. The thought of a contract between ruler and people frequently appears, and reference to the contract made at Hebron between David and the people of Israel (2 Sam. v. 3). The civil jurist also looked back to the principle of the jus gentium giving to every free people the right to choose a ruler; also to that famous text of the Digest, where, through the lex regia, the people were said to have conferred their powers upon the princeps.[415] With such thoughts of the people’s rights came theories of representation and of the monarch as the people’s representative; and Roman corporation law supplied the rules for mediaeval representative assemblies, lay and clerical.[416]

The old Germanic state was a conglomerate of positive law and specific custom, having no existence beyond the laws, which were its formative constituents. Such a conception did not satisfy mediaeval publicists, imbued with antique views of the State’s further aims and potency. Nor were all men satisfied with the State’s divinely ordered origin in human sinfulness. An ultimate ground for its existence was sought, commensurate with its broadest aims. Such was found, not in positive, but in natural law--again an antique conception. That a veritable natural law existed, all men agreed; also that its source lay back of human conventions, somehow in the nature of God. All admitted its absolute supremacy, binding alike upon popes and secular monarchs, and rendering void all acts and positive laws contravening it. It must be the State’s ultimate constituent ground.

God was the source of natural law. Some argued that it proceeded from His will, as a command, others that its source was eternal Reason announcing her necessary and unalterable dictates; again its source was held to lie more definitely in the Reason that was identical with God the summa ratio in Deo existens, as Aquinas puts it. From that springs the Lex naturalis, ordained to rest on the participation of man, as a rational creature, in the moral order which he perceives by the light of natural reason. This lex naturalis (or jus naturale) is a true promulgated law, since God implants it for recognition in the minds of men.[417] Absolute unconditional supremacy was ascribed to it, and also to the jus divinum, which God revealed supernaturally for a supramundane end. A cognate supremacy was ascribed to the jus commune gentium, which was composed of rules of the jus naturale adapted to the conditions of fallen human nature.

Such law was above the State, to which, on the other hand, positive law was subject. Whenever the ruler was conceived as sovereign or absolute, he likewise was deemed above positive law, but bound by these higher laws. They were the source and sanction of the innate and indestructible rights of the individual, to property and liberty and life as they were formulated at a later period. It is evident how the recognition of such rights fell in with the Christian revelation of the absolute value of every individual in and for himself and his immortal life. On the other hand, certain rights of the State, or the community, were also indestructible and inalienable by virtue of the nature of their source in natural law.[418]

This abstract of political theory has been stated in terms generalized to vagueness, and with no attempt to follow the details or trace the historical development. The purpose has been to give the general flavour of mediaeval thought concerning Church and State, and the Individual as a member of them both. One observes how the patristic and mediaeval Christian thought mingles with the antique; and one may assume the intellectual acumen applied by legist, canonist, and scholastic theologian to the discussion and formulation of these high arguments. The mediaeval genius for abstractions is evident, and the mediaeval faculty of linking them to the affairs of life; clear also is the baneful effect of mediaeval allegory. Even as men now-a-days are disposed to rest in the apparent reality of the tangible phenomenon, so the mediaeval man just as commonly sought for his reality in what the phenomenon might be conceived to symbolize. Therefore in the higher political controversies, even as in other interests of the human spirit, argument through allegory was accepted as legitimate, if not convincing; and a proper sequence of thought was deemed to lie from one symbolical meaning to another, with even a deeper validity than from one palpable fact to that which followed from it.

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Book VII

ULTIMATE INTELLECTUAL INTERESTS OF THE TWELFTH AND THIRTEENTH CENTURIES

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XXXII. EVOLUTION OF MEDIAEVAL LATIN VERSE…

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